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.

Photo of Kristof Van Quathem Kristof Van Quathem

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of…

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of advising clients on government affairs strategies concerning the lawmaking, to compliance advice on the adopted laws regulations and guidelines, and the representation of clients in non-contentious and contentious matters before data protection authorities.

Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.