Guidelines 07/2020 on the concepts of controller and processor in the GDPR

Section 1.1  Choice of the processor

92. The controller has the duty to use “only processors providing sufficient guarantees to implement appropriate technical and organisational measures”, so that processing meets the requirements of the GDPR – including for the security of processing – and ensures the protection of data subject rights. The controller is therefore responsible for assessing the sufficiency of the guarantees provided by the processor and should be able to prove that it has taken all of the elements provided in the GDPR into serious consideration.

93. The guarantees “provided” by  the processor are actually those that the processor is able to demonstrate to the satisfaction of the controller, as those are the only ones that can effectively be taken into account by the controller when assessing compliance with its obligations. Often this will require an exchange of relevant documentation (e.g. privacy policy, terms of service, record of processing activities, records management policy, information security policy, reports of external audits, recognised international certifications, like ISO 27000 series).

94. The controller’s assessment of whether the guarantees are sufficient is a form of risk assessment, which will greatly depend on the type of processing entrusted to the processor and needs to be made on a case-by-case basis, taking into account the nature, scope, context and purposes of processing as well as the risks for the rights and freedoms of natural persons.

95. The following elements should be taken into account by the controller in order to assess the sufficiency of the guarantees: the processor’s expert knowledge (e.g. technical expertise with regard to security measures and data breaches); the processor’s reliability; the processor’s resources. The reputation of the processor on the market may also be a relevant factor for controllers to consider.

96. Furthermore, the adherence to an approved code of conduct or certification mechanism can be used as an element by which sufficient guarantees can be demonstrated. The processors are therefore advised to inform the controller as to this circumstance, as well as to any change in such adherence.

97. The obligation to use only processors “providing sufficient guarantees” contained in Article 28 (1) GDPR is a continuous obligation. It does not end at the moment where the controller and processor conclude a contract or other legal act. Rather the controller should, at appropriate intervals, verify the processor’s guarantees, including through audits and inspections where appropriate.