Article 39 GDPR
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Legal Text[edit | edit source]
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]
Commentary[edit | edit source]
Overview[edit | edit source]
Same as Article 38, Article 39 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 can be partially retraced to the GDPR’s predecessor, the 1995 DPD. 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, 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
Furthermore, the DPO has a central role throughout the DPIA process. 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.”
High risk activities[edit | edit source]
According to Article 39(2), 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. 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.
[edit | edit source]
Articles 39(1)(d) and (e) 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. Furthermore, some commentators read this contact point function as an obligation for the organisation to involve the DPO in any contact with supervisory authorities. However, while DPAs can always contact the DPO, contacting other members of the organisation is also possible. Finally, although the DPO is bound by confidentiality, he or she may still contact and seek advice from the DPA.
 Article 39(1)(b), Recital 97 GDPR.
 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, 17.
 Article 39(1)(c).
 Article 39(1)(c), WP29 (n 2) 17.
 WP29 (n 2) 18.
 Ceclilia Alvarez Rigaudias and Alessandro Spina, ‘Article 39. Tasks 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), 714.
 Matthias Bergt, ‘Art. 39. Aufgaben des Dayenschutzbeauftragten‘ in Jürgen Kühling and Benedikt Buchner (eds.), Datenschutz-Grundverordnung/BDSG Kommentar, 759.
 WP29 (n 2) 18.
Decisions[edit | edit source]
→ You can find all related decisions in Category:Article 39 GDPR