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

Section 1.6  Sub-processors

147. Data processing activities are often carried out by a great number of actors, and the chains of subcontracting are becoming increasingly complex. The GDPR introduces specific obligations that are triggered when a processor intends to engage another player, thereby adding another link to the chain.

148. Although the chain may be quite long, the controller retains its pivotal role in determining the purpose and means of processing. Article 28 (2) GDPR stipulates that the processor shall not engage another processor without prior specific or general written authorisation of the controller. In the case of general written authorisation, the processor must 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. In both cases, the processor must obtain the controller’s authorisation in writing before any personal data processing is entrusted to the sub-processor. In order to make the assessment and the decision whether to authorise subcontracting, a list of intended sub-processors (including per each: their locations, what they will be doing and proof of what safeguards have been implemented) will have to be provided to the data controller by the processor.

149. The prior written authorisation may be specific, i.e. referring to a specific sub-processor for a specific processing activity and at a specific time, or general. This should be specified in the contract or other legal act that governs the processing.

150. In cases where the controller decides to accept certain sub-processors at the time of the signature of the contract, a list of approved sub-processors should be included in the contract or an annex thereto. The list should then be kept up to date, in accordance with the general or specific authorisation given by the controller.

151. If the controller chooses to give its specific authorisation, it should specify in writing which sub-processor and what processing activity it refers to. Any subsequent change will need to be further authorised by the controller before it is put in place. If the processor’s request for a specific authorisation is not answered to within the set timeframe, it should be held as denied. The controller should make its decision to grant or withhold authorisation taking into account its obligation to only use processors providing “sufficient guarantees” (see section 1.1 above).

152. Alternatively, the controller may provide its general authorisation to the use of sub-processors (in the contract, including a list with such sub-processors in an annex thereto), which should be supplemented with criteria to guide the processor’s choice (e.g., guarantees in terms of technical and organisational measures, expert knowledge, reliability and resources). In this scenario, the processor needs to  inform the controller in due time of any intended addition or replacement of sub-processor(s) so as to provide the controller with the opportunity to object.

153. Therefore, the main difference between the specific authorisation and the general authorisation scenarios lies in the meaning given to the controller’s silence: in the general authorisation situation, the controller’s failure to object with in the set timeframe can be interpreted as authorisation.

154. In both scenarios, the contract should include details as to the timeframe for the controller’s approval or objection and as to how the parties intend to communicate regarding this topic (e.g. templates). Such timeframe needs to be reasonable in light of the type of processing, the complexity of the activities entrusted to the processor (and thes ub-processors) and the relationship between the parties.

155. Regardless of the criteria suggested by the controller to choose providers, the processor remains  fully liable to the controller for the performance of thes ub-processors’ obligations (Article28 (4) GDPR).

156. Furthermore, when a processor intends to employ an (authorised) sub-processor, it must enter into a contract with it that imposes the same obligations as those imposed on the first processor by the controller or the obligations must be imposed by another legal act under EU or Member State law. Thew hole chain of processing activities needs to be regulated by written agreements.

157. Imposing the “same” obligations should be construed in a functional rather than in a formal way: it is not necessary for the contract to include exactly the same words as those used in the contract between the controller and the processor, but it should ensure that the obligations in substance are the same. This also means that if the processor entrusts the sub-processor with a specific part of the processing, to which some of the obligations cannot apply, such obligations should no tbe included “by default” in the contract with the sub-processor, as this would only generate uncertainty.