Article 29 GDPR

← Article 29 - Processing under the authority of the controller or 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 29 - Processing under the authority of the controller or processor

The processor and any person acting under the authority of the controller or of the processor, who has access to personal data, shall not process those data except on instructions from the controller, unless required to do so by Union or Member State law.

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

Article 29 GDPR obliges processors (as defined in Article 4(8) GDPR) and anyone with access to personal data acting under the authority of the controller (as defined in Article 4(7) GDPR) or processor to only process those data on instructions from the controller, unless required to do otherwise by Union or Member State law.

Therefore, this provision establishes an obligation for anybody processing the data on behalf of a controller to follow the controller's instructions in order for the controller will stay the entity which determines the purposes and means of the processing.

Any person acting under the authority of the controller or the processor

Who has access to personal data

This provision applies to both the processor and any person acting under the authority of the controller or of the processor, who has access to personal data. "Access to personal data" should be understood as the mere possibility to access the data that is processed on the controller's behalf. It is not necessary that the personal data is actually accessed or otherwise processed by that person.

Regarding the processor as the addressee of this obligation, it should be noted that there are similar and connected obligations in Article 28 GDPR (see commentary on Article 28 GDPR). A main feature of Article 29 GDPR is, however, that every person acting under the authority of the processor is also directly bound by it. This could potentially lead to conflicts when a person under the authority of the processor (e.g. an employee of the processor) receives different instructions from the controller.

Any person acting under the authority of the controller or the processor refers to legal persons as well as to natural persons. A requirement is that the controller or processor has some authority over the person regarding the processing of personal data on behalf of the controller or processor. Therefore, there must be some legal relationship between the person and the controller or processor. This is the case for employees of the controller or processor.

"Employees who have access to personal data within an organisation are generally not considered as 'controllers' or 'processors', but rather as 'persons acting under the authority of the controller or of the processor' within the meaning of article 29 GDPR"

EDPB, 'Guidelines 07/2020 on the concepts of controller and processor in the GDPR', 7 July 2021 (Version 2.1), foot note 9.

But people other than employees could also be considered as persons acting under the authority of the controller or the processor. Determinations of this requirement in respect of freelancers, consultants or other relationships with similarities to employees can all prove difficult. The respective assessment should be performed on a case-by-case basis and should, inter alia, consider the independence of the person.

For example: A freelancer provides limited technical support for a company and potentially has access to the personal data of the company's employees while fixing some bugs in the system used by the controller to record its employees' working hours.

The company as controller and the freelancer have to asses whether the freelancer should be considered a processor or if it is only a person under the authority of the controller. Therefore they should consider, inter alia, how integrated the freelancer is in the controller's organisation, how the controller's authority over the freelancer (especially regarding data protection) is formulated in the respective agreement and the level of the freelancer's independence in fulfilling his duties.

Regarding persons under the authority of a processor, reference can also be made to Article 28(3)(b) GDPR, which stipulates that a processing agreement has to oblige the processor to ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality (see commentary on Article 28(3)(b) GDPR).

Article 29 GDPR applies also to sub-processors; in this case, the requirements of Article 28 GDPR have to be considered as well.

In any event, the fact that a person is subject to Article 29 GDPR should not be used as a factor to avoid the conclusion of a processing agreement under Article 28 GDPR.

Shall not process

Except on the instructions from the controller

Article 29 GDPR, together with various other provisions like Article 24 and 28 GDPR, aims at ensuring a clear distribution of responsibilities for the processing of personal data. The controller is the ultimate decision maker and determines the purposes and means of the processing (see Article 4(7) GDPR). On the other hand, everybody else involved in the processing should follow the controller's instructions and process the data only on the controller's behalf. Otherwise, they themselves would act as controllers; Article 28(10) GDPR specifically stipulates this consequence for processors.

In order to achieve this goal, Article 29 GDPR prohibits any person acting under the authority of the controller or the processor who processes personal data on their behalf from doing so without their instructions. In other words, such persons are bound by the instructions of the controller (or processor).

An instruction could be any order to do or refrain from doing something, e.g. regarding the implementation of technical and organisational measures or the performance of a processing activity. Article 29 GDPR does not provide any requirements for these instructions, but considering the potential liability and consequences, it is recommended that the actors document all instructions which should at the same time be sufficiently clear. Persons under the authority of the controller or processor are generally not obliged to assess the lawfulness of the instruction. However, a processor is obliged to inform the controller, if it considers that instructions of the controller infringes the GDPR or other laws (see Article 28(3) GDPR). Arguably, the recipient of an instructions is not bound by it if the instruction is clearly unlawful.

This provision directly obliges its addressees without the need to first contractually agree on this obligation, which is a significant difference to Article 28(3)(a) GDPR. Processors and any other person acting under the authority of the controller (or processor) are therefore directly bound by this provision even if respective contractual clause with the controller or processor was concluded.

Unless required to do so by Union or Member State law

Article 29 GDPR provides for an exception to the general rule that personal data can only be processed in accordance with the instructions of the controller. According to this provision, this rule does not apply when a person (including a processor) acting under the authority of the controller or of the processor, is otherwise required by Union or Member State law.

This could be the case if a person is legally obliged to provide data to authorities or to archive specific information. Provisions in Union or Member State law that merely allow for the processing are insufficient. This provision also does not apply to the compliance with obligations that are directed at the controller.

Decisions

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