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Die Artikel-29-Datenschutzgruppe hat im Dezember 2016 u.a. “Guidelines on Data Protection Officers (‘DPOs’)” veröffentlicht, die (bis Ende Jänner 2017) kommentiert werden können. hat diese Möglichkeit genutzt und folgende Stellungnahme abgegeben:

In general, welcomes the approach of the WP29 to further illustrate the GDPR and create a benefit for the addressees in the practical adoption of its provisions. Nevertheless, we would like to draw your attention to three issues which we find to be debatable in the view of a practical implementation:

1. Section 3.2. of the Guidelines (“Necessary resources”) – last bullet point:
The WP29 clarifies that an external DPO can fulfill the duties of a DPO for a data controller/processor either by a single representative or by a team. We welcome this approach; however, the option of carrying out the tasks of a DPO as a team should also be open to internal DPOs. We are of the opinion that controllers/processors should be free to appoint a single DPO or a team/board with the tasks of a DPO as long as all team members benefit from the provisions of the GDPR regarding dismissal etc. Therefore, we would recommend a clarification of the Guidelines in this regard.

2. Section 3.4. of the Guidelines (“Dismissal or penalty for performing DPO tasks”):
The WP29 argues that the cancellation of a contract with an external DPO shall only be possible and legally enforceable in the case the external DPO is in breach of its duties of being a DPO. This interpretation could be in conflict with the principle of freedom of contract. Each controller should be able to engage an external DPO but also to terminate the assignment of an external DPO in compliance with the relevant contract and applicable law. An external DPO is, in essence, a service provider commissioned to perform the controller´s / processor’s duties. The strict interpretation by the WP29 would lead to a situation where a controller cannot switch from an external DPO to an internal DPO unless the external DPO has failed to fulfill its duties under the GDPR. We are of the opinion that such an interpretation is not in line with the GDPR requirements and the principle of freedom of contract. We would therefore kindly ask for a re-evaluation or clarification of the Guidelines as regards this matter.

3. Section 4.4. of the Guidelines (“The DPO´s role in record-keeping”):
We regard the possibility of assigning the task of a data controller/processor to keep records of processing activities to the DPO, as the WP29 suggests, very critical for four reasons:
a. The DPO should be able to perform its duties and rights in full autonomy and without any interference by the controller / processor. On top of that, other tasks assigned to the DPO shall not lead to any conflicts of interest in executing the task of a DPO. It is foreseeable that a task principally assigned to the data controller, where noncompliance might lead to a fine as imposed by Art. 83, might create conflicts and could endanger the full autonomy of DPOs, for example in case the DPO does not follow instructions given by the data controller regarding the records to “cover-up” data processing not fully in line with the GDPR.

b. Furthermore, the DPO has – from the viewpoint of the tasks assigned by the GDPR- a sole control and advisory function, and is not responsible for the controller’s / processor`s compliance with the GDPR. Should the DPO be mandated to keep the records of all processing activities of the controller, this is in conflict with the nature of these tasks assigned and would very likely lead to a conflict of interests.

c. Also from a practical perspective the assignment of this task causes certain issues: Such a register has to follow specific requirements of IT or other responsible departments within a controller’s organization. It is not ensured that a DPO is receiving complete information of all processing activities within a controller’s business as the DPO is not responsible to have a complete list/register of all processing operations. The DPO has the role of an advisor and supervisor but not that of an “implementer”. This obligation lies with the controller / processor and not with the DPO.

d. Finally, the autonomy of the DPO opens up the possibility to impose fines on the data controller based on the activities of the DPO – while having only very limited influence over the DPO. As the GDPR is very clear on this, we therefore ask the WP29 to reconsider its opinion regarding the assignment of record-keeping of the processing activities to the DPO.

As the GDPR is very clear on this, we therefore ask the WP29 to reconsider its opinion regarding the assignment of record-keeping of the processing activities to the DPO.