Article 38 GDPR
|← Article 38 - Position of the data protection officer →|
Legal Text[edit | edit source]
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[edit | edit source]
Commentary[edit | edit source]
Overview[edit | edit source]
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. 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.
The role of the DPO in the organisation[edit | edit source]
According to Article 38(1), 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. In any case, the DPO should be involved at a stage when fundamental decisions can still be made. 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.
DPOs should also be regularly involved in management meetings, and opinions of the DPO should be given due weight. 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. 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.
As reflected in Article 38(2), 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. 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.
Independence and confidentiality[edit | edit source]
According to Article 38(3), 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. 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.
Regarding the confidentiality requirements of Article 38(5), it is worth emphasising that the “obligation of secrecy/confidentiality does not prohibit the DPO from contacting and seeking advice from the supervisory authority”. 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.
Conflicts of interest[edit | edit source]
Tightly connected to the independence requirement is Article 38(6) 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. 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”. 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.
 Ceclilia Alvarez Rigaudias and Alessandro Spina, ‘Article 38. Position of the data protection officer’ in Christopher Kuner, Lee A. Bygrave, Christopher Docksey, and and Laura Dreachsler (eds.), The EU General Data Protection Regulation (GDPR) – A Commentary (Oxford University Press), 702.
 WP29, Guidelines on Data Protection Officers (‘DPOs’), adopted on 13 December 2016; as last revised and adopted on 5 April 2017, 16/EN, WP 243 rev.01, 4.
 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.
 Matthias Bergt, ‘Art. 38 Stellung des Datenschutzbeauftragten‘ in Jürgen Kühling and Benedikt Buchner (eds.), Datenschutz-Grundverordnung/BDSG Kommentar, 741.
 WP29 (n 2) 13.
 WP29 (n 2) 14.
 Ibid.; See also Rigaudias and Spina (n 1) 707, as well as Articles 5(2) and 24(1) GDPR.
 Bergt (n 4) 742, 743.
 Bergt (n 4) 743 – commentators refer to the processor’s obligations under Article 28(3)(h).
 Bergt (n 4) 745.
 WP29 (n 2) 15.
 Ibid, 18.
 Article 35(3); See also Bergt (n 4) 749.
 WP29 (n 2) 16.
 Bergt (n 4) 750.
Decisions[edit | edit source]
→ You can find all related decisions in Category:Article 38 GDPR