Article 28 GDPR

← Article 28 - Processor →
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 28 - Processor

1. Where processing is to be carried out on behalf of a controller, the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject.

2. The processor shall not engage another processor without prior specific or general written authorisation of the controller. In the case of general written authorisation, the processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes.

3. Processing by a processor shall be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller. That contract or other legal act shall stipulate, in particular, that the processor:

(a) processes the personal data only on documented instructions from the controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by Union or Member State law to which the processor is subject; in such a case, the processor shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;

(b) ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

(c) takes all measures required pursuant to Article 32;

(d) respects the conditions referred to in paragraphs 2 and 4 for engaging another processor;

(e) taking into account the nature of the processing, assists the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III;

(f) assists the controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 taking into account the nature of processing and the information available to the processor;

(g) at the choice of the controller, deletes or returns all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data;

(h) makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in this Article and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller.

With regard to point (h) of the first subparagraph, the processor shall immediately inform the controller if, in its opinion, an instruction infringes this Regulation or other Union or Member State data protection provisions.

4. Where a processor engages another processor for carrying out specific processing activities on behalf of the controller, the same data protection obligations as set out in the contract or other legal act between the controller and the processor as referred to in paragraph 3 shall be imposed on that other processor by way of a contract or other legal act under Union or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of this Regulation. Where that other processor fails to fulfil its data protection obligations, the initial processor shall remain fully liable to the controller for the performance of that other processor's obligations.

5. Adherence of a processor to an approved code of conduct as referred to in Article 40 or an approved certification mechanism as referred to in Article 42 may be used as an element by which to demonstrate sufficient guarantees as referred to in paragraphs 1 and 4 of this Article.

6. Without prejudice to an individual contract between the controller and the processor, the contract or the other legal act referred to in paragraphs 3 and 4 of this Article may be based, in whole or in part, on standard contractual clauses referred to in paragraphs 7 and 8 of this Article, including when they are part of a certification granted to the controller or processor pursuant to Articles 42 and 43.

7. The Commission may lay down standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the examination procedure referred to in Article 93(2).

8. A supervisory authority may adopt standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the consistency mechanism referred to in Article 63.

9. The contract or the other legal act referred to in paragraphs 3 and 4 shall be in writing, including in electronic form.

10. Without prejudice to Articles 82, 83 and 84, if a processor infringes this Regulation by determining the purposes and means of processing, the processor shall be considered to be a controller in respect of that processing.

Relevant Recitals

Recital 81: Entrusting a Processor

To ensure compliance with the requirements of this Regulation in respect of the processing to be carried out by the processor on behalf of the controller, when entrusting a processor with processing activities, the controller should use only processors providing sufficient guarantees, in particular in terms of expert knowledge, reliability and resources, to implement technical and organisational measures which will meet the requirements of this Regulation, including for the security of processing. The adherence of the processor to an approved code of conduct or an approved certification mechanism may be used as an element to demonstrate compliance with the obligations of the controller. The carrying-out of processing by a processor should be governed by a contract or other legal act under Union or Member State law, binding the processor to the controller, setting out the subject-matter and duration of the processing, the nature and purposes of the processing, the type of personal data and categories of data subjects, taking into account the specific tasks and responsibilities of the processor in the context of the processing to be carried out and the risk to the rights and freedoms of the data subject. The controller and processor may choose to use an individual contract or standard contractual clauses which are adopted either directly by the Commission or by a supervisory authority in accordance with the consistency mechanism and then adopted by the Commission. After the completion of the processing on behalf of the controller, the processor should, at the choice of the controller, return or delete the personal data, unless there is a requirement to store the personal data under Union or Member State law to which the processor is subject.

Commentary

Complex processing often requires outsourcing of a part of the activities to specialised service providers with whom personal data are then shared. Article 28 GDPR responds to this necessity and establishes the legal framework for a cooperation with so-called processors to ensure the protection of the data subjects' rights as well as general GDPR compliance.

(1) Duty to Use Processors and Minimum Requirements

Article 28 GDPR sets out the relationship between the controller and the processor When using a processor to carry out processing of personal data, the controller must only engage a processor who can sufficiently guarantee to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the Regulation and ensure the protection of the rights of the data subject. The controller must also be able to demonstrate the required technical knowledge, expertise and resources to provide adequate guarantees.

Processor - Processing Carried Out on Behalf of the Controller

The definition of processor consists of positive and negative characteristics. Positively, a processor processes data "on behalf" of the controller (Article 4(8) GDPR). This especially means that they do so under instructions (please refer to the commentary on Article 4(8) GDPR). Negatively, the processing person cannot be considered a processor if they meet the requirements of being a (joint) controller in the sense of Article 4(7) GDPR and Article 26(1) GDPR.

Appropriate Technical and Organisational Measures

The controller may use “only processors providing sufficient guarantees to implement appropriate technical and organisational measures”. According to Recital 81, the assessment shall be done "in terms of expert knowledge, reliability and resources, to implement technical and organisational measures which will meet the requirements of this Regulation, including for the security of processing".

More precisely, the controller will have to take into “serious consideration” different elements, including processor’s privacy policies, terms of service, records of processing activities, management and information security policies, reports of external audits as well as recognised international certifications, like ISO 27000 series. The controller should also assess the processor’s expert knowledge and technical expertise (with regard to security measures and data breaches), reliability and resources. The reputation of the processor in the market may also be a relevant factor for consideration.

The obligation to use only processors “providing sufficient guarantees” is a continuous one which does not end with the conclusion of the contract. Rather, the controller should, at appropriate intervals, verify the processor’s guarantees through audits and inspections.

Privileged Processing in the Controller-Processor-Relation

According to the prevailing opinion, processing in the controller-processor-relationship is privileged. This means, for example, that no legal basis under Article 6 GDPR is required for the sharing of personal data between the two parties. This does not reduce data protection because the "reduced" material-legal requirements are compensated for by technical-organisational measures. This view is supported by the fact that the processor is bound by instructions.

In addition, Hartung also makes a systematic argument. The GDPR holds different obligations for processors and controllers. If Article 28 GDPR did not intend any privileging, this differentiated system, the rules of Article 28 GDPR, and in particular of Article 28(10) GDPR, would be superfluous, as everything could be regulated via the general GDPR rules. Ultimately, this is also historically justified by the fact that the privilege also already existed under the Directive 95/46/EC. This was derived from an opinion of the WP29, which read as follows: "Controller and processor and their staff are therefore considered as the ‘inner circle of data processing’ and are not covered by special provisions on third parties."

(2) Engagement of Other Processors by the Processor

The controller must remain responsible for the processing operations. This is why Article 28(2) GDPR prevents the processor from engaging with further processors without prior specific or general written authorisation of the controller.

In cases of general written authorisations, the EDPS has recommended that the processor must provide the controller with a list of sub-processors at the time when the general authorisation is given, and provide details as to the type of processing, its relation to specific products or services, and the relevant data protection safeguards that will be in place when processing is undertaken by specific sub-processors.

If the processor decides to change anything of the above (for example, replaces a (sub)processor), the controller must be informed so that it can object to such change. According to the EDPS, the opportunity to object must be "meaningful". This means, for instance, that a ‘take-it -or-leave-it’ scenario, "whereby the sole and exclusive remedy of the controller is to terminate its contract with the processor, would not be a meaningful remedy". This is because, "in the EDPS’ view, if terminating one service means having to terminate an entire suite of services and if a controller does not consider that a viable business option, that would result in the controller having no choice but to accept a sub-processor".

For specific written authorisations, the EDPB has suggested that these could refer to a ‘specific sub-processor for a specific processing activity and at a specific time’ and ‘if a processor’s request for a specific authorisation is not answered to within the set time-frame, it should be held as denied’. Therefore, according to the EDPB the difference between general and specific authorisations has to do with the interpretation of the controller’s non-response to a request. With regard to "a general authorisation, the controller’s silence is to be interpreted as an authorisation. In contrast, with regard to a specific authorisation, the controller’s silence is to be interpreted as a refusal to provide authorisation for the specific sub-processor(s) for which the processor is requesting authorisation".

In both cases, the EDPB has suggested that the relevant communication procedures and timeframes must be included in the controller�-processor contract and such timeframe must be reasonable according to the type and complexity of processing. Article 28(4) GDPR contains further obligations of the processor engaging another processor (see below).

(3) Contract or Other Legal Act Binding the Processor

If the requirement under Article 28(1) GDPR is met, i.e. the processing party is considered a processor, there is an obligation under Article 28(3) GDPR to arrange a written contract or other legally binding act between the parties. The core content of the contract consists of eight elements: (1) the subject-matter and (2) the duration of the processing, (3) the nature and (4) purpose of the processing, (5) the type of personal data, (6) the categories of the data subjects and (7) the obligations and rights of the controller. The second part of Art. 28(3) provides a list of elements which are to be specifically provided for. These are, in particular, clauses on the following elements.

(a) Documented Instructions

Article 28(3)(a) GDPR requires the processor to process personal data only on documented instructions from the controller, unless otherwise provided for by Union or Member State law. The provision clarifies that this processing also includes transfers in the sense of Articles 44 et seqq. GDPR.

According to the EDPB, the instructions shall refer to each processing activity and can include “permissible and unacceptable handling of personal data, more detailed procedures, ways of securing data, etc. The processor shall not go beyond what is instructed by the controller”.

The contract can provide the parties with procedures and templates to communicate “documented” instructions. Instructions, however, can be given by different means (e.g. e-mail), as long as it is possible to keep records of them.

The contract should specify the requirements for transfers to third countries or international organisations, taking into account the provisions of Chapter V of the GDPR.

Where Union or Member State law requires a processor to process the data, the processor shall be exempt from the obligation to do so only on documented instructions. However, they then shall inform the controller of that legal requirement before the processing, unless that law prohibits such information on important grounds of public interest.

(b) Confidentiality

Persons authorised to process the personal data are employees and temporary workers involved in the processing activities. Under Article 28 (3)(b) GDPR, authorised persons are committed to confidentiality. This may be arranged either via a specific contractual agreement or statutory obligations already in place.

(c) Measures Required by Article 32 GDPR

Please refer to the commentary under Article 32 GDPR.

(d) Engaging a Sub-Processor

Processors must act under the instructions of the controller. As already above, processors should obtain prior specific or general authorisation to use sub-processors or to change arrangements with existing sub-processors. The contract must further regulates these aspects. See also Paragraphs 4 below.

(e) Assisting With the Controller's Obligation to Respond to Data Subject's Requests

Dealing with data subjects' rights requests is an obligation of the controller under Articles 12-22 GDPR. However, according to Article 28(3)(e) GDPR, the processors shall be obliged to assist the controller for the fulfilment of these obligations. Typically, the assistance consists in promptly forwarding any request received from data subjects. However, in some circumstances, the processor will be given more specific, technical duties, especially when it is in the position of extracting and managing the personal data. The contract should list the technical and organisational measures adopted by the processor to ensure the assistance.

(f) Assisting With the Controller's Obligations under Articles 32 to 36 GDPR

Under Article 28(3)(f) GDPR, the agreement between the parties provides further details as to how the processor assist the controller in ensuring compliance with Articles 32 - 36 GDPR.

Reference to Article 32 GDPR means that the processor shall provide assistance on how to best implement effective security measures. This provision seems to create a sort of consultancy role on the processor who not only has to respect Article 32 GDPR in its own structure, but also has to provide assistance to improve the controller’s systems, where necessary.

In case of data breach (Articles 33-34 GDPR), the processor shall notify the controller without undue delay. The EDPB also recommends “that there is a specific timeframe of notification (e.g. number of hours) and the point of contact for such notifications be provided in the contract. The contracts should finally specify how the processor shall notify the controller in case of a breach”.

The processor must provide assistance in case the controller carries out a Data Protection Impact Assessment (Article 35 GDPR) or if a prior consultation before a DPA is needed under Article 36 GDPR.

(g) Deleting or Returning Personal Data

The controller can decide whether personal data (including existing copies) shall be deleted or returned after the end of the provision of the processor's services unless the Union or Member State law requires storage of the personal data. If the controller chooses that the personal data be deleted, the processor should ensure that the deletion is performed in a secure manner. The processor should confirm to the controller that the deletion has been completed within an agreed timescale and manner.

(h) Provision of Compliance Demonstrating Information and Contribution to Audits

According to Article 28(3)(h) GDPR, the processor should be obliged to provide to the controller all information necessary to demonstrate compliance with all the aforementioned obligations and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller.

Obligation to Notify the Controller in Case of Infringing Instructions

Finally, according to Article 28(3) GDPR, the processor must immediately inform the controller if, in its opinion, an instruction infringes the GDPR or other Union or Member State data protection provisions. It is advisable to record the results of the inspections carried out by the person responsible so that, if necessary, proof of the inspections carried out can be provided to the supervisory authorities at a later date.

(4) Sub-Processing

While Article 28(2) GDPR specifies the conditions under which the processor may engage other processors, Article 28(4) GDPR contains the legal consequences of subcontracting.

The first sentence obliges the (original) processor to conclude a contract or other legal act with the sub-processor that contains the same obligations as the contract or other legal act concluded between the controller and the (original) processor. Therefore, the sub-processor should especially be obliged to provide respective sufficient guarantees to implement appropriate technical and organisational measures. The EDPB also clarified that “this includes the obligation under Article 28(3)(h) to allow for and contribute to audits by the controller or another auditor mandated by the controller”.

The second sentence clarifies that the processor is also liable to the controller for breaches by the sub-processor.

(5) Codes of Conduct

Article 28(5) GDPR gives the processor the option of demonstrating sufficient guarantees through adherence of a processor to an approved code of conduct as referred to in Article 40 GDPR or an approved certification mechanism as referred to in Article 42 GDPR. In this case, the demonstration is not automatically deemed to have been provided. Rather, it must be decided in each case, taking into account the specific processing, the code of conduct and the certification procedure. In this context, it should be noted that, according to the wording "element", the aforementioned adherence should only be used as a factor, i.e. as an indication, and thus an overall assessment of the controller based on all the information and evidence available to them is still required (cf. Recital 81 sentence 2 GDPR).

(6) to (8) Standard Contractual Clauses

Article 28(6) GDPR introduces the possibility to base the contract or other legal act in whole or in part on standard contractual clauses. This option has the potential to create simple and recognised contractual clauses, especially for largely standardised processes and processing such as cloud, hosting and infrastructure services or also software-as-a-service offerings, which might create a balanced and data protection-friendly framework for the controller, the processor but also the data subjects.

According to this provision, the use of standard contractual clauses can also be considered in connection with an officially recognised certification granted to the controller or processor pursuant to Articles 42 and 43 GDPR.

There are two ways in which standard contractual clauses can be established. On the one hand, the Commission may lay them down in accordance with the examination procedure referred to in Article 93(2) GDPR (Article 28(7) GDPR). On the other hand, according to Article 28(8) GDPR, they can also be adopted by a supervisory authority in accordance with the consistency mechanism referred to in Article 63 GDPR.

The Commission has made use of its power under Article 28(7) GDPR for the first time with the implementing decision dated 4 June 2021 and published standard contractual clauses.

Previously, standard contractual clauses were published in the "EDPB's Register for Decisions taken by supervisory authorities and courts on issues handled in the consistency mechanism" on the initiative of the Danish supervisory authority.

(9) Form Requirements

Article 28(9) GDPR states that the contract or the other legal act referred to in Article 28(3)(4) GDPR shall be in writing and clarifies that the electronic form fulfils this requirement.

(10) Consequences in Case of an Excess of the Processor

The processor is not entitled to determine the purposes and means of the processing. If they nevertheless take over the processing, they are deemed to be controllers with regard to this processing pursuant to Article 28(10) GDPR. This concerns cases in which the processor unlawfully exceeds his powers, although the decision-making power lies with the controller. In this respect, one can also speak of a task or function excess. Any liability under Articles 82, 83 and 84 remains unaffected. The processor loses its privileged status with regard to liability. They are subject to all the obligations of a controller set out in the Regulation.

Decisions

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