On April 9, 2020, the German Supervisory Authority of Baden-Wuerttemberg published standard contractual clauses for data processors pursuant to Article 28(8) GDPR. It is the first German Supervisory Authority to do so, and the second in EU after the Danish Supervisory Authority published its own standard clauses in July 2019. However, while the Danish clauses passed the GDPR consistency mechanism before the European Data Protection Board (“EDPB”), the German clauses have yet to be reviewed by the EDPB.
Both the Danish and the German clauses set out a high level of protection by imposing a wide range of obligations on processors. However, in contrast to the Danish clauses, the German clauses impose obligations that are more explicit than (and, to some extent, go beyond) what is stated in Article 28 of the GDPR. Amongst other obligations, the German clauses require the processor to:
- provide proof, at the controller’s request, that the processor’s personnel are committed to process personal data in accordance with the GDPR;
- provide, at the controller’s request, a “comprehensive and up-to-date” data protection and security concept for the data processing;
- obtain the controller’s consent before authorizing its personnel to telework;
- report not only data breaches to the controller, but also “disturbances” and “suspected data breaches”; and
- have in place a record of processing operations.
Although processors may already be required to fulfill some of these obligations under the GDPR, their inclusion in these clauses may now result in contractual liability as well.
On April 2, 2020, the Swedish Supervisory Authority indicated that the Danish processing clauses can also be used in Sweden.