CHAPTER IV

Controller and processor
Section 1

General obligations

Obligations of the controller
Article 19
1
Member States shall provide for the controller, taking into account the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, to implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in accordance with this Directive. Those measures shall be reviewed and updated where necessary.
2
Where proportionate in relation to the processing activities, the measures referred to in paragraph 1 shall include the implementation of appropriate data protection policies by the controller.

Data protection by design and by default
Article 20
1
Member States shall provide for the controller, taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing, as well as the risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing, both at the time of the determination of the means for processing and at the time of the processing itself, to implement appropriate technical and organisational measures, such as pseudonymisation, which are designed to implement data protection principles, such as data minimisation, in an effective manner and to integrate the necessary safeguards into the processing, in order to meet the requirements of this Directive and protect the rights of data subjects.
2
Member States shall provide for the controller to implement appropriate technical and organisational measures ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons.

Joint controllers
Article 21
1
Member States shall, where two or more controllers jointly determine the purposes and means of processing, provide for them to be joint controllers. They shall, in a transparent manner, determine their respective responsibilities for compliance with this Directive, in particular as regards the exercise of the rights of the data subject and their respective duties to provide the information referred to in Article 13, by means of an arrangement between them unless, and in so far as, the respective responsibilities of the controllers are determined by Union or Member State law to which the controllers are subject. The arrangement shall designate the contact point for data subjects. Member States may designate which of the joint controllers can act as a single contact point for data subjects to exercise their rights.
2
Irrespective of the terms of the arrangement referred to in paragraph 1, Member States may provide for the data subject to exercise his or her rights under the provisions adopted pursuant to this Directive in respect of and against each of the controllers.

Processor
Article 22
1
Member States shall, where processing is to be carried out on behalf of a controller, provide for the controller to use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of this Directive and ensure the protection of the rights of the data subject.
2
Member States shall provide for the processor not to engage another processor without prior specific or general written authorisation by the controller. In the case of general written authorisation, the processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes.
3
Member States shall provide for the processing by a processor to be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller. That contract or other legal act shall stipulate, in particular, that the processor:
a
acts only on instructions from the controller;
b
ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
c
assists the controller by any appropriate means to ensure compliance with the provisions on the data subject's rights;
d
at the choice of the controller, deletes or returns all the personal data to the controller after the end of the provision of data processing services, and deletes existing copies unless Union or Member State law requires storage of the personal data;
e
makes available to the controller all information necessary to demonstrate compliance with this Article;
f
complies with the conditions referred to in paragraphs 2 and 3 for engaging another processor.
4
The contract or the other legal act referred to in paragraph 3 shall be in writing, including in an electronic form.
5
If a processor determines, in infringement of this Directive, the purposes and means of processing, that processor shall be considered to be a controller in respect of that processing.

Processing under the authority of the controller or processor
Article 23
Member States shall provide for the processor and any person acting under the authority of the controller or of the processor, who has access to personal data, not to process those data except on instructions from the controller, unless required to do so by Union or Member State law.

Records of processing activities
Article 24
1
Member States shall provide for controllers to maintain a record of all categories of processing activities under their responsibility. That record shall contain all of the following information:
a
the name and contact details of the controller and, where applicable, the joint controller and the data protection officer;
b
the purposes of the processing;
c
the categories of recipients to whom the personal data have been or will be disclosed including recipients in third countries or international organisations;
d
a description of the categories of data subject and of the categories of personal data;
e
where applicable, the use of profiling;
f
where applicable, the categories of transfers of personal data to a third country or an international organisation;
g
an indication of the legal basis for the processing operation, including transfers, for which the personal data are intended;
h
where possible, the envisaged time limits for erasure of the different categories of personal data;
i
where possible, a general description of the technical and organisational security measures referred to in Article 29(1).
2
Member States shall provide for each processor to maintain a record of all categories of processing activities carried out on behalf of a controller, containing:
a
the name and contact details of the processor or processors, of each controller on behalf of which the processor is acting and, where applicable, the data protection officer;
b
the categories of processing carried out on behalf of each controller;
c
where applicable, transfers of personal data to a third country or an international organisation where explicitly instructed to do so by the controller, including the identification of that third country or international organisation;
d
where possible, a general description of the technical and organisational security measures referred to in Article 29(1).
3
The records referred to in paragraphs 1 and 2 shall be in writing, including in electronic form.
The controller and the processor shall make those records available to the supervisory authority on request.

Logging
Article 25
1
Member States shall provide for logs to be kept for at least the following processing operations in automated processing systems: collection, alteration, consultation, disclosure including transfers, combination and erasure. The logs of consultation and disclosure shall make it possible to establish the justification, date and time of such operations and, as far as possible, the identification of the person who consulted or disclosed personal data, and the identity of the recipients of such personal data.
2
The logs shall be used solely for verification of the lawfulness of processing, self-monitoring, ensuring the integrity and security of the personal data, and for criminal proceedings.
3
The controller and the processor shall make the logs available to the supervisory authority on request.

Cooperation with the supervisory authority
Article 26
Member States shall provide for the controller and the processor to cooperate, on request, with the supervisory authority in the performance of its tasks on request.

Data protection impact assessment
Article 27
1
Where a type of processing, in particular, using new technologies, and taking into account the nature, scope, context and purposes of the processing is likely to result in a high risk to the rights and freedoms of natural persons, Member States shall provide for the controller to carry out, prior to the processing, an assessment of the impact of the envisaged processing operations on the protection of personal data.
2
The assessment referred to in paragraph 1 shall contain at least a general description of the envisaged processing operations, an assessment of the risks to the rights and freedoms of data subjects, the measures envisaged to address those risks, safeguards, security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with this Directive, taking into account the rights and legitimate interests of the data subjects and other persons concerned.

Prior consultation of the supervisory authority
Article 28
1
Member States shall provide for the controller or processor to consult the supervisory authority prior to processing which will form part of a new filing system to be created, where:
a
a data protection impact assessment as provided for in Article 27 indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk; or
b
the type of processing, in particular, where using new technologies, mechanisms or procedures, involves a high risk to the rights and freedoms of data subjects.
2
Member States shall provide for the supervisory authority to be consulted during the preparation of a proposal for a legislative measure to be adopted by a national parliament or of a regulatory measure based on such a legislative measure, which relates to processing.
3
Member States shall provide that the supervisory authority may establish a list of the processing operations which are subject to prior consultation pursuant to paragraph 1.
4
Member States shall provide for the controller to provide the supervisory authority with the data protection impact assessment pursuant to Article 27 and, on request, with any other information to allow the supervisory authority to make an assessment of the compliance of the processing and in particular of the risks for the protection of personal data of the data subject and of the related safeguards.
5
Member States shall, where the supervisory authority is of the opinion that the intended processing referred to in paragraph 1 of this Article would infringe the provisions adopted pursuant to this Directive, in particular where the controller has insufficiently identified or mitigated the risk, provide for the supervisory authority to provide, within a period of up to six weeks of receipt of the request for consultation, written advice to the controller and, where applicable, to the processor, and may use any of its powers referred to in Article 47. That period may be extended by a month, taking into account the complexity of the intended processing. The supervisory authority shall inform the controller and, where applicable, the processor of any such extension within one month of receipt of the request for consultation, together with the reasons for the delay.
Section 2

Security of personal data

Security of processing
Article 29
1
Member States shall provide for the controller and the processor, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, in particular as regards the processing of special categories of personal data referred to in Article 10.
2
In respect of automated processing, each Member State shall provide for the controller or processor, following an evaluation of the risks, to implement measures designed to:
a
deny unauthorised persons access to processing equipment used for processing (‘equipment access control’);
b
prevent the unauthorised reading, copying, modification or removal of data media (‘data media control’);
c
prevent the unauthorised input of personal data and the unauthorised inspection, modification or deletion of stored personal data (‘storage control’);
d
prevent the use of automated processing systems by unauthorised persons using data communication equipment (‘user control’);
e
ensure that persons authorised to use an automated processing system have access only to the personal data covered by their access authorisation (‘data access control’);
f
ensure that it is possible to verify and establish the bodies to which personal data have been or may be transmitted or made available using data communication equipment (‘communication control’);
g
ensure that it is subsequently possible to verify and establish which personal data have been input into automated processing systems and when and by whom the personal data were input (‘input control’);
h
prevent the unauthorised reading, copying, modification or deletion of personal data during transfers of personal data or during transportation of data media (‘transport control’);
i
ensure that installed systems may, in the case of interruption, be restored (‘recovery’);
j
ensure that the functions of the system perform, that the appearance of faults in the functions is reported (‘reliability’) and that stored personal data cannot be corrupted by means of a malfunctioning of the system (‘integrity’).

Notification of a personal data breach to the supervisory authority
Article 30
1
Member States shall, in the case of a personal data breach, provide for the controller to notify without undue delay and, where feasible, not later than 72 hours after having become aware of it, the personal data breach to the supervisory authority, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Where the notification to the supervisory authority is not made within 72 hours, it shall be accompanied by reasons for the delay.
2
The processor shall notify the controller without undue delay after becoming aware of a personal data breach.
3
The notification referred to in paragraph 1 shall at least:
a
describe the nature of the personal data breach including, where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
b
communicate the name and contact details of the data protection officer or other contact point where more information can be obtained;
c
describe the likely consequences of the personal data breach;
d
describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
4
Where, and in so far as, it is not possible to provide the information at the same time, the information may be provided in phases without undue further delay.
5
Member States shall provide for the controller to document any personal data breaches referred to in paragraph 1, comprising the facts relating to the personal data breach, its effects and the remedial action taken. That documentation shall enable the supervisory authority to verify compliance with this Article.
6
Member States shall, where the personal data breach involves personal data that have been transmitted by or to the controller of another Member State, provide for the information referred to in paragraph 3 to be communicated to the controller of that Member State without undue delay.

Communication of a personal data breach to the data subject
Article 31
1
Member States shall, where the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, provide for the controller to communicate the personal data breach to the data subject without undue delay.
2
The communication to the data subject referred to in paragraph 1 of this Article shall describe in clear and plain language the nature of the personal data breach and shall contain at least the information and measures referred to in points (b), (c) and (d) of Article 30(3).
3
The communication to the data subject referred to in paragraph 1 shall not be required if any of the following conditions are met:
a
the controller has implemented appropriate technological and organisational protection measures, and those measures were applied to the personal data affected by the personal data breach, in particular those that render the personal data unintelligible to any person who is not authorised to access it, such as encryption;
b
the controller has taken subsequent measures which ensure that the high risk to the rights and freedoms of data subjects referred to in paragraph 1 is no longer likely to materialise;
c
it would involve a disproportionate effort. In such a case, there shall instead be a public communication or a similar measure whereby the data subjects are informed in an equally effective manner.
4
If the controller has not already communicated the personal data breach to the data subject, the supervisory authority, having considered the likelihood of the personal data breach resulting in a high risk, may require it to do so, or may decide that any of the conditions referred to in paragraph 3 are met.
5
The communication to the data subject referred to in paragraph 1 of this Article may be delayed, restricted or omitted subject to the conditions and on the grounds referred to in Article 13(3).
Section 3

Data protection officer

Designation of the data protection officer
Article 32
1
Member States shall provide for the controller to designate a data protection officer. Member States may exempt courts and other independent judicial authorities when acting in their judicial capacity from that obligation.
2
The data protection officer shall be designated on the basis of his or her professional qualities and, in particular, his or her expert knowledge of data protection law and practice and ability to fulfil the tasks referred to in Article 34.
3
A single data protection officer may be designated for several competent authorities, taking account of their organisational structure and size.
4
Member States shall provide for the controller to publish the contact details of the data protection officer and communicate them to the supervisory authority.

Position of the data protection officer
Article 33
1
Member States shall provide for the controller to ensure that the data protection officer is involved, properly and in a timely manner, in all issues which relate to the protection of personal data.
2
The controller shall support the data protection officer in performing the tasks referred to in Article 34 by providing resources necessary to carry out those tasks and access to personal data and processing operations, and to maintain his or her expert knowledge.

Tasks of the data protection officer
Article 34
Member States shall provide for the controller to entrust the data protection officer at least with the following tasks:
1. to inform and advise the controller and the employees who carry out processing of their obligations pursuant to this Directive and to other Union or Member State data protection provisions;
2. to monitor compliance with this Directive, with other Union or Member State data protection provisions and with the policies of the controller 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;
3. to provide advice where requested as regards the data protection impact assessment and monitor its performance pursuant to Article 27;
4. to cooperate with the supervisory authority;
5. to act as the contact point for the supervisory authority on issues relating to processing, including the prior consultation referred to in Article 28, and to consult, where appropriate, with regard to any other matter.