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

INTRODUCTION

1. This document seeks to provide guidance on the concepts of controller and processor based on the GDPR’s rules on definitions in Article 4 and the provisions on obligations in chapter IV. The main aim is to clarify the meaning of the concepts and to clarify the different roles and the distribution of responsibilities between these actors.

2. The concept of controller and its interaction with the concept of processor play a crucial role in the application of the GDPR, since they determine who shall be responsible for compliance with different data protection rules, and how data subjects can exercise their rights in practice. The GDPR explicitly introduces the accountability principle, i.e. the controller shall be responsible for, and be able to demonstrate compliance with, the principles relating to processing of personal data in Article 5. Moreover, the GDPR also introduces more specific rules on the use of processor(s) and some of the provisions on personal data processing are addressed – not only to controllers – but also to processors.

3. It is therefore of paramount importance that the precise meaning of these concepts and the criteria for their correct use are sufficiently clear and shared throughout the European Union and the EEA.

 4. The Article 29 Working Party issued guidance on the concepts of controller/processor in its opinion 1/2010 (WP169) in order to provide clarifications and concrete examples with respect to these concepts. Since the entry into force of the GDPR, many questions have been raised regarding to what extent the GDPR brought changes to the concepts of controller and processor and their respective roles. Questions were raised in particular to the substance and implications of the concept of joint controllership (e.g. as laid down in Article 26 GDPR) and to the specific obligations for processors laid down in Chapter IV (e.g. as laid down in Article 28 GDPR). Therefore, and as the EDPB recognizes that the concrete application of the concepts needs further clarification, the EDPB now deems it necessary  to give more developed and specific guidance in order to ensure  a consistent and harmonised approach throughout the EU and the EEA. The present guidelines replace the previous opinion of Working Party 29 on these concepts (WP169).

5. In part I, these guidelines discuss the definitions of the different concepts of controller, joint controllers, processor and third party/recipient. In part II, further guidance is provided on the consequences that are attached to the different roles of controller, joint controllers and processor.