Article 39 GDPR

← Article 39 - Tasks of the data protection officer →
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 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

Recital 77

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

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

Overview

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

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

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.[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

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.[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]

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[1] Article 39(1)(b), Recital 97 GDPR.

[2] 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.

[3] Article 39(1)(c).

[4] Article 39(1)(c), WP29 (n 2) 17.

[5] WP29 (n 2) 18.

[6] 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.

[7] Ibid.

[8] Matthias Bergt, ‘Art. 39. Aufgaben des Dayenschutzbeauftragten‘ in Jürgen Kühling and Benedikt Buchner (eds.), Datenschutz-Grundverordnung/BDSG Kommentar, 759.

[9] WP29 (n 2) 18.

Decisions

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