Article 39 GDPR

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Article 39 - Tasks of the data protection officer
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Chapter 10: Delegated and implementing acts

Legal Text[edit | edit source]


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[edit | edit source]

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[edit | edit source]

Overview[edit | edit source]

Same as Article 38 GDPR, Article 39 GDPR shows similarities with Regulation 45/2001, which mandated each of the European Union institutions, bodies, and agencies to appoint a data protection officer. The roots of Article 39 GDPR can be partially retraced to the GDPR’s predecessor, the Directive 95/46/EC. In particular, Article 18 of the Directive mentioned the role of ‘data protection official’ who ensured “that the rights and freedoms of the data subjects are unlikely to be adversely affected by the processing operations” and who was responsible in particular: (i) “for ensuring in an independent manner the internal application” of the national data protection laws; and (ii) “for keeping an internal register of processing operations carried out by the controller.”

Monitoring Compliance[edit | edit source]

In assisting the processor or controller with ensuring compliance,[1] the DPO may, in particular:

·        collect information to identify processing activities

·        analyse and check the compliance of processing activities

·        inform, advise and issue recommendations to the controller or the processor[2]

Furthermore, the DPO has a central role throughout the DPIA process.[3] While it is the controller or processor’s responsibility to ensure compliance and conduct a DPIA where needed, the DPO has a duty to “provide advice where requested as regards the [DPIA] and monitor its performance pursuant to Article 35.”[4]

High Risk Activities[edit | edit source]

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 prioritise their tasks or choose the most adequate DPIA methodology, it does not mean that low-risk areas may ever be neglected.[5] Indeed, the 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.

DPOs and Supervisory Authorities[edit | edit source]

Articles 39(1)(d)(e) GDPR and lay down the DPO’s obligations in relation to the supervisory authorities. For example, the DPO could facilitate cooperation of the organisation in prior consultation procedures or DPA investigations.[6] Furthermore, some commentators read this contact point function as an obligation for the organisation to involve the DPO in any contact with supervisory authorities.[7] However, while DPAs can always contact the DPO, contacting other members of the organisation is also possible.[8] Finally, although the DPO is bound by confidentiality, he or she may still contact and seek advice from the DPA.[9]

Decisions[edit | edit source]

→ You can find all related decisions in Category:Article 39 GDPR

References[edit | edit source]

  1. Article 39(1)(b) GDPR, Recital 97 GDPR.
  2. WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 17 (available here).
  3. Article 39(1)(c) GDPR.
  4. Article 39(1)(c) GDPR; WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 17 (available here).
  5. WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 18 (available here).
  6. Alvarez Rigaudias, Spina, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 39 GDPR, p. 714 (Oxford University Press 2020).
  7. Alvarez Rigaudias, Spina, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 39 GDPR, p. 714 (Oxford University Press 2020).
  8. Bergt, in Kühling, Buchner, DS-GVO BDSG, Article 39 GDPR, margin number 18 (C.H. Beck 2020).
  9. WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 18 (available here).