WP29 opinion on data processing at work

Where the word “employee” is used in this Opinion, WP29 does not intend to restrict the scope of this term merely to persons with an employment contract recognized as such under applicable labour laws. Over the past decades, new business models served by different types of labour relationships, and in particular employment on a freelance basis, have become more commonplace. This Opinion is intended to cover all situations where there is an employment relationship, regardless of whether this relationship is based on an employment contract.

Guidelines on Data Protection Officers (‘DPOs’)

4.1. Monitoring compliance with the GDPR

As part of these duties to monitor compliance, DPOs 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.

Monitoring of compliance does not mean that it is the DPO who is personally responsible where there is an instance of non-compliance. The GDPR makes it clear that it is the controller, not the DPO, who is required to ‘implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in accordance with this Regulation’ (Article 24(1)). Data protection compliance is a corporate responsibility of the data controller, not of the DPO.

Article 35 GDPR. Data protection impact assessment

Guidelines on Data Protection Officers (‘DPOs’)

4.2. Role of the DPO in a data protection impact assessment

The WP29 recommends that the controller should seek the advice of the DPO, on the following issues, amongst others [35]:

_{[35] Article 39(1) mentions the tasks of the DPO and indicates that the DPO shall have ‘at least’ the following tasks. Therefore, nothing prevents the controller from assigning the DPO other tasks than those explicitly mentioned in Article 39(1), or specifying those tasks in more detail.}

• whether or not to carry out a DPIA

• what methodology to follow when carrying out a DPIA

• whether to carry out the DPIA in-house or whether to outsource it

• what safeguards (including technical and organisational measures) to apply to mitigate any risks to the rights and interests of the data subjects

• whether or not the data protection impact assessment has been correctly carried out and whether its conclusions (whether or not to go ahead with the processing and what safeguards to apply) are in compliance with the GDPR.

If the controller disagrees with the advice provided by the DPO, the DPIA documentation should specifically justify in writing why the advice has not been taken into account [36].

Article 36 GDPR. Prior consultation

Guidelines 4/2019 on Article 25 Data Protection by Design and by Default Version 2.0.

2.1.3.3 „nature, scope, context and purpose of processing“

28. In short, the concept of nature can be understood as the inherent[11] characteristics of the processing. The scope refers to the size and range of the processing. The context relates to the circumstances of the processing, which may influence the expectations of the data subject, while the purpose pertains to the aims of the processing.

_{[11] Examples are special categories personal data, automatic decision-making, skewed power relations, unpredictable processing, difficulties for the data subject to exercise the rights, etc.}