Amendment 1168· GDPR Article 28(3a), (3b), (3c) and (paragraph4) (new)

3a.By way of derogation from paragraph 3 and the general processor requirements therein, where a processor has been designated as a gatekeeper pursuant to Article 3 of Regulation (EU) 2022/1925, the processing shall instead be governed directly by this Regulation. Any such gatekeeper processor shall strictly adhere to the following obligations:

(a)processes the personal data only on documented instructions from the controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by Union or Member State law to which the processor is subject; in such a case, the processor shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;

(b)ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

(c)takes all measures required pursuant to Article 32;

(d)respects the conditions referred to in paragraphs 2 and 4 for engaging another processor;

(e)taking into account the nature of the processing, assists the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III;

(f)assists the controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 taking into account the nature of processing and the information available to the processor;

(g)at the choice of the controller, deletes or returns all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data;

(h)makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in this Article and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller.

With regard to point (h) of the first subparagraph, the processor shall immediately inform the controller if, in its opinion, an instruction infringes this Regulation or other Union or Member State data protection provisions.

3b.A controller that is using a gatekeeper as a processor may form a contract or other legal act under Union or Member State law, that is binding on the gatekeeper processor and that sets out further details, like the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller. Such contracts shall not contain terms that are unfair or limit the rights of the controllers under this Regulation.

3c.A contractual term shall be regarded as unfair if it requires undue extra payment for the exercise of rights of the controller, limits the rights of the controller to enforce the contract or otherwise legally, factually or economically interferes with the rights of controllers under this Regulation. The European Commission shall specify further terms of a contract that are regarded as unfair in accordance with the examination procedure referred to in Article 93(2).

4.Where a processor engages another processor for carrying out specific processing activities on behalf of the controller, the same data protection obligations as set out in paragraph 3 to 3c shall apply or, if this Regulation does not apply to them directly, be imposed on that other processor by way of a contract or other legal act under Union or Member State law and jurisdiction, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of this Regulation. Where that other processor fails to fulfil its data protection obligations, the initial processor shall remain fully liable to the controller for the performance of that other processor’s obligations.