Article 38
Position of the data protection officer
(49) Whereas, in order to avoid unsuitable administrative formalities, exemptions from the obligation to notify and simplification of the notification required may be provided for by Member States in cases where processing is unlikely adversely to affect the rights and freedoms of data subjects, provided that it is in accordance with a measure taken by a Member State specifying its limits; whereas exemption or simplification may similarly be provided for by Member States where a person appointed by the controller ensures that the processing carried out is not likely adversely to affect the rights and freedoms of data subjects; whereas such a data protection official, whether or not an employee of the controller, must be in a position to exercise his functions in complete independence;
(54) Whereas with regard to all the processing undertaken in society, the amount posing such specific risks should be very limited; whereas Member States must provide that the supervisory authority, or the data protection official in cooperation with the authority, check such processing prior to it being carried out; whereas following this prior check, the supervisory authority may, according to its national law, give an opinion or an authorization regarding the processing; whereas such checking may equally take place in the course of the preparation either of a measure of the national parliament or of a measure based on such a legislative measure, which defines the nature of the processing and lays down appropriate safeguards;
Regulation
Art. 38 1. The controller and the processor shall 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 and processor shall support the data protection officer in performing the tasks referred to in Article 39 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. 3. The controller and processor shall ensure that the data protection officer does not receive any instructions regarding the exercise of those tasks. He or she shall not be dismissed or penalised by the controller or the processor for performing his tasks. The data protection officer shall directly report to the highest management level of the controller or the processor. 4. Data subjects may contact the data protection officer with regard to all issues related to processing of their personal data and to the exercise of their rights under this Regulation. 5. The data protection officer shall be bound by secrecy or confidentiality concerning the performance of his or her tasks, in accordance with Union or Member State law. 6. The data protection officer may fulfil other tasks and duties. The controller or processor shall ensure that any such tasks and duties do not result in a conflict of interests. |
Directive
Art. 18 2. Member States may provide for the simplification of or exemption from notification only in the following cases and under the following conditions: - where, for categories of processing operations which are unlikely, taking account of the data to be processed, to affect adversely the rights and freedoms of data subjects, they specify the purposes of the processing, the data or categories of data undergoing processing, the category or categories of data subject, the recipients or categories of recipient to whom the data are to be disclosed and the length of time the data are to be stored, and/or - where the controller, in compliance with the national law which governs him, appoints a personal data protection official, responsible in particular: - for ensuring in an independent manner the internal application of the national provisions taken pursuant to this Directive - for keeping the register of processing operations carried out by the controller, containing the items of information referred to in Article 21 (2), thereby ensuring that the rights and freedoms of the data subjects are unlikely to be adversely affected by the processing operations. |
Netherlands
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Germany
Section 4f ... (3) The data protection official shall be directly subordinate to the head of the public or private body. He or she shall be free to use his/her specialized knowledge in the area of data protection. He/she shall suffer no disadvantage through the performance of his/her duties. The appointment of a data protection official may be revoked by applying Section 626 of the Civil Code mutatis mutandis or, in the case of private bodies, at the request of the supervisory authority. If a data protection official is to be appointed under sub-Section 1, then this appointment shall not be subject to termination, unless there is reason for the controller to terminate the appointment for just cause without complying with a notice period. After the data protection official has been removed from office, he or she cannot be terminated for a year following the end of the appointment unless the responsible body has just cause for termination without complying with a notice period. The controller shall enable the data protection official to take part in advanced training measures and shall assume the expense of such measures, in order for the data protection official to maintain the expertise needed to perform his/her tasks. (4) The data protection official shall be bound to maintain secrecy on the identity of the data subject and on circumstances permitting conclusions to be drawn about the data subject, unless he/she is released from this obligation by the data subject. (4a) In so far as the data protection official obtains knowledge of data in the course of his or her activities in connection with which a right of refusal to give evidence applies on professional grounds to the head of the public or private body or a person employed at such a body, this right shall also apply to the data protection official and his/her assistants. The person to whom the right of refusal to give evidence applies on professional grounds shall decide whether to exercise this right, except where it will not be possible to effect such a decision in the foreseeable future. To the extent to which the data protection official’s right of refusal to give evidence applies, the data protection official’s files and other documentation shall be subject to a prohibition of seizure. (5) The public and private bodies shall support the data protection official in the performance of his/her duties and in particular, to the extent needed for such performance, make available assistants as well as premises, furnishings, equipment and other resources. Data subjects may approach the data protection official at any time. |