Article 28

7b. In Article 28, the following paragraphs 3a, 3b and 3c are added and paragraph 4 is amended as follows:

7d. Article 28 is amended as follows:

1. Where processing is to be carried out on behalf of a controller, the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject. 2. TheWhere the processor shallengages notfurther engage another processor without prior specific or general written authorisation of the controller. In the case of general written authorisationprocessors, the processor shall always inform the controller of any intended changeschange concerningrelating to the additionengagement or replacement of other processors, thereby giving the controller the opportunity to object to such changes. 3. ProcessingWhere bythe aprocessing processorof shallpersonal bedata governedtakes by a contract or other legal actplace under Unionan or Member State law, that is binding on the processoragreement with regard to the controller andwhich that sets outspecifies the subject-mattersubject matter and duration of the processing, the nature and purpose of the processing, the typetypes of personal data to be processed and the categories of data subjects and(processing theon obligations and rightsbehalf of the controller. That contract or other legal act shall stipulate), in particular, that the processor: (a) processesmay process the personal data only onfor the purposes of carrying out the contract or in accordance with other documented instructions from the controller, — including within regardrelation to transfersthe transfer of personal data to a third country or an international organisation, — unless requiredthe processor is obliged 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 thatthose legal requirementrequirements beforeprior to processing, unless thatthe law in question prohibits such informationnotification on important grounds of an important public interest;. The data processor shall ensure: (ba) ensures that persons authorised to process the personal data have committed themselvesundertaken to maintain confidentiality or are undersubject to an appropriate statutory obligationduty of confidentiality; (c) takes all measures required pursuant to Article 32;(b) that all measures necessary for the performance of the contract, as set out in Article 32, are taken; (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;(c) that the conditions set out in paragraphs 2 and 4 regarding the use of the services of a further processor are complied with; The processor shall assist the controller in: (a) fulfilling the controller’s obligations to respond to requests for the exercise of the data subject’s rights referred to in Chapter III, where possible by taking appropriate technical and organisational measures, taking into account the nature of the processing; (b) to comply with the controller’s obligations set out in Articles 32 to 36, taking into account the nature of the processing and the information available to the controller. The processor is obliged: (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;(a) upon completion of the processing operations, to either erase or return all personal data, at the choice of the controller, unless there is an obligation under Union law or the law of the Member States to retain the personal data; (hb) makesto available toprovide the controller with all necessary information necessary to demonstrate compliance with the obligations laid down in this Article, and to allow for and contributecooperate towith audits, – including inspections, conducted– carried out by the controller or another auditor mandated by the controller. With regard to pointparagraph 4(hb) of the first subparagraph, the processor shall immediately inform the controller without delay if, init itsconsiders opinion,that an instruction infringes this Regulation or other Union or Member State data protection provisions of the Union or the Member States. 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 the contract or other legal act between the controller and the processor as referred to in paragraph 3 shall be imposed on that other processor by way of a contract or other legal act under Union or Member State law, 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 the processor engages the services of another processor to carry out specific processing activities on behalf of the controller, the following shall apply to that other processor: (a) the obligations set out in paragraph 3 shall apply mutatis mutandis or, where this Regulation does not apply to that processor pursuant to Articles 2 and 3, (b) by means of a contract or other legal instrument under Union law or the law of the Member State concerned, the same data protection obligations as those laid down between the controller and the processor in accordance with paragraph 3, whereby, in particular, sufficient safeguards must be provided to ensure that the appropriate technical and organisational measures are implemented so that the processing is carried out in accordance with the requirements of this Regulation. WhereIf thatthe other processorsub-processor fails to fulfil its data protection obligations, the initialfirst processor shall remain fullybe liable to thecontrollerthe controller for the performancefulfilment of the obligations of that othersub-processor processor’s obligations. 5. Adherence of a processor to an approved code of conduct as referred to in Article 40 or an approved certification mechanism as referred to in Article 42 may be used as an element by which to demonstrate sufficient guarantees as referred to in paragraphs 1 and 4 of this Article. 6. Without prejudice to an individual contract between the controller and the processor, the contract or the other legal act referred to in paragraphs 3 and 4 of this Article may be based, in whole or in part, on standard contractual clauses referred to in paragraphs 7 and 8 of this Article, including when they are part of a certification granted to the controller or processor pursuant to Articles 42 and 43. 7. The Commission may lay down standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the examination procedure referred to in Article 93(2). 8. A supervisory authority may adopt standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the consistency mechanism referred to in Article 63.Paragraph 6, 7, and 8 are deleted. 9. The contract or the other legal act referred to in paragraphs 3 and 4 shall be in writing, including in electronic form. 10. Without prejudice to Articles 82, 83 and 84, if a processor infringes this Regulation by determining the purposes and means of processing, the processor shall be considered to be a controller in respect of that processing. 10a. Notwithstanding paragraph 3, the agreement between the controller and the processor need not specify the nature and purpose of the processing, the types of data to be processed and the categories of data subjects, as required by the first sentence of paragraph 3, if (a) the processor provides a binding assurance as to the level of protection to which it is able to ensure the security of the processing and its obligation to assist the controller in accordance with the third sentence by means of appropriate technical and organisational measures; and (b) the controller confirms the suitability of these safeguards for the processing operations it intends to carry out (infrastructure processing). Paragraph 2 shall not apply in the context of infrastructure data processing insofar as: (a) data transfers to further processors are envisaged on the basis of Article 45 or safeguards pursuant to Article 46(2)(b), (e) and (f), and enforceable rights and effective remedies are available to data subjects; and (b) the first processor undertakes to the controller and the data subjects to assume liability for compliance with the obligations of the subsequent processors."

Justification

Article 28 should better reflect modern cloud, hosting, security and infrastructure services, which are standardised, layered and technically complex. For such infrastructure processing, controllers need enforceable assurances on security, assistance and downstream liability, not bespoke descriptions of every technical sub-operation. The amendment cuts formalistic contract burdens while preserving core duties: confidentiality, security, assistance, deletion or return, audits, controller suitability checks and processor liability for sub-processors.

7e. Article 28 is replaced by the following:

"Article 28 GDPR Processor 1. Where processing is to be carried out on behalf of a controller, the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject. 2. The processor shall not engage another processor without prior specific or general written authorisation of the controller. In the case of general written authorisation, the processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes. 3. Processing by a processor shall be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out 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. That contract or other legal act shall stipulate, in particular, that the processor:Any processor shall: (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. 3a. A controller may from a contract or other legal act under Union or Member State law, that is binding on the 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 and role of the controllers under this Regulation. 3b. A contractual term shall be regarded as unfair and void 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 may 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 the contract or other legal act between the controller and the processor as referred to in paragraph 3 to 3b 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 at least the jurisdiction of a Member State, 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. 2WhereWhere 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. 5. Adherence of a processor to an approved code of conduct as referred to in Article 40 or an approved certification mechanism as referred to in Article 42 may be used as an element by which to demonstrate sufficient guarantees as referred to in paragraphs 1 and 4 of this Article. 6. Without prejudice to an individual contract between the controller and the processor, the contract or the other legal act referred to in paragraphs 3 and 4 of this Article may be based, in whole or in part, on standard contractual clauses referred to in paragraphs 7 and 8 of this Article, including when they are part of a certification granted to the controller or processor pursuant to Articles 42 and 43. 7. The Commission may lay down standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the examination procedure referred to in Article 93(2). 8. A supervisory authority may adopt standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the consistency mechanism referred to in Article 63. 9. The contract or the other legal act referred to in paragraphs 3 and 4 shall be in writing, including in electronic form. 10. Without prejudice to Articles 82, 83 and 84, if a processor infringes this Regulation by determining the purposes and means of processing, the processor shall be considered to be a controller in respect of that processing."

Justification

Alternative to other Art 28 proposal. Attempts also to shift burdens from SMEs to large processors, hyperscalers and software producers. This change would make the duties directly applicable to processors, removing the need for millions of B2B contracts.