DPO (data protection officer)

1) The obligation to appoint a DPO

The European Personal Data Regulation of 27 April 2016[1]  requires the appointment of a DPO in three situations[2]:

  • For processing by a public authority or institution;
  • For institutions whose core activity is the processing of data requiring regular and systematic monitoring of people on a large scale;
  • For institutions whose core activity is the large-scale processing of “sensitive” data, or of data regarding criminal convictions and offences.

As the processing of personal data is nowadays an integral part of companies’ activities, the above-mentioned second scenario (the mandatory appointment of a data protection officer) seems to apply to many companies.

On December 13th, the G29 published guidelines on the interpretation of Article 37.1 of the Regulation[3], thereby attempting to clarify a few points.

As regards the concept of “core activity”: as far as the G29 is concerned, the core activity must be understood as all of the key operations necessary to the data controller and the subcontractor to attain their objectives. Accordingly, processing carried out for the purposes of secondary activities (ex. : payment of salaries) must not be taken into account to determine whether or not it is mandatory to appoint a DPO.

As regards the concept of “systematic and regular monitoring”: recital 24 of the Regulation provides that, in order to determine if there is monitoring, it is necessary to establish if natural persons are monitored on the Internet, which includes the possible subsequent use of personal data processing techniques, which consist of the profiling of a natural person, in order, in particular, to take decisions concerning the data subject or to analyze or predict the latter’s preferences, behaviors and state of mind mindset.

Thus, profiling and cookies are sufficient for companies to be required to appoint a DPO.

According to the G29, “regular” processing means processing that takes place at specific intervals or during specific periods, with constant or periodic monitoring, whereas “systematic” processing involves monitoring via a system or based on an organization, a method or monitoring as part of a more general data collection plan (ex. : monitoring via well-being applications, location tracking)

Finally, as regards the concept of “large scale”, it is important to take into account certain information, such as the number of data subjects, data quantity,  data categories,  the processing period  (permanent or not), the geographical scope of the processing (ex. : monitoring of all of the users of a public transport network via transport cards).

Even outside these scenarios, the Article 29 Working Group recommends the appointment of a DPO, who will be asked to perform all of the duties needed to ensure processing compliance with the Regulation and with national legislation.

2) The profile of the DPO

There is no standard profile for the Data Protection Officer.

The DPO must be appointed based on his/her qualifications (Article 37.5 of the Regulation) and must be able to communicate effectively with the persons in question and work with the supervisory authority.

Important! It will not be possible to appoint as DPO a person whose appointment could potentially create a situation of conflict of interest[4].

For example, certain positions will not be compatible with the position of DPO. For example, this is the case with the following positions: chief executive, chief operating, chief financial, chief medical officer, head of marketing department, head of Human Resources, IT Director. This will also apply to any person whose position or status involves the determination of purposes and means of processing.

3) The DPO’s duties

The DPO’s duties are defined in Article 39 of the Regulation:

  • Inform and advise the data controller or the processor, as well as all of their employees who carry out processing;
  • Verify compliance with the Regulation and with national legislation;
  • Provide advice where requested as regards the data protection impact assessment;
  • Cooperate with the supervisory authority.

The controller 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.

The controller shall support the data protection officer in performing his/her tasks 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.

The controller shall ensure that the Data Protection officer does not receive any instructions regarding the exercise of those tasks (independence).


Charlotte GALICHET


[1] Regulation (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)


[2] Article 37.1 du Règlement

« 1. The controller and the processor shall designate a data protection officer in any case where:

(a) the processing is carried out by a public authority or body, except for courts acting in their judicial capacity;

(b) the core activities of the controller or the processor consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects on a large scale; or

(c) the core activities of the controller or the processor consist of processing on a large scale of special categories of data pursuant to Article 9 and personal data relating to criminal convictions and offences referred to in Article 10. »


[3] Guidelines on Data Protection Officers, §2.1 (adopted on 13 Décember 2016 and consolidated on 5 April 2017)



[4] Article 38.6 of the Regulation:

« 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».

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