We note that, in Romania, the supervisory authority recommended to the data controllers and data processors who do not fulfill the criteria listed by GDPR in art.follow
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The DPO should have proficient knowledge of data protection law and practices and the ability to fulfill a series of tasks expressly prescribed by the GDPR, as well as any related operations necessary for fulfilling such tasks. Within the organization, the DPO would normally be the individual with the best expertise in data protection matters, but also senior enough in order to be able to play the role, manage all stakeholders, have sufficient top management credibility and support.
The DPO must be a facilitator and be able to resist to all surrounding pressure. The right balance of these two areas data protection knowledge and seniority may sometime be difficult to achieve, with seniority being though decisive in our view. Nonetheless, the required level of expertise and knowledge can also be supplemented with the support of an internal team or external support external DPO or external consultancy support. In the case of an internal DPO, the data controllers and data processors should be aware of the conflict of interests and independence criteria. The DPO cannot actually take any business decisions within the organization e.
Attention should be paid to personal relations and previous affiliations in order to assess the independence criteria.
This brings additional limitations to the DPO selection process. Any breach of the conflict of interests restrictions is expressly sanctioned under the GDPR. Independence and delineation from conflict of interests must also be ensured in the position documentation contract, job description, organizational chart, organization and functioning regulation, etc.
Inside the organization, a company will face the challenge of eliminating conflict of interests and ensuring independence. Outside of the organization, as a new recruit-employee or freelancer, on one hand, or a separate legal entity external DPO , on the other hand. In a recruitment process, a company will face the recruiting burden, considering that data protection specialists are rather scarce on the market.
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In case this individual is licensed as a freelancer, depending on the structure of the relation, a company should pay attention to the risks of fiscal requalification as dependent position. For many companies, an external DPO may be the most appropriate option. An external DPO may have additional resources, professional liability insurance, better exposure to similar projects and therefore higher expertise. However, the external DPO firm should appoint a main contact person for a certain client. This is similar, for instance, to an audit company, which must appoint a specific individual as the key responsible for a particular client account relationship including for the purposes of the auditor registration with the trade registry.
A combination of internal and external resources may actually be the best approach in many instances.
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An internal DPO would ensure for instance a close management of the related data protection projects and an appropriate and sufficient flow of information towards the external advisors , corroborated with the use of external resources lawyers, privacy specialized companies , based on the organization business needs. Assuming that all prerequisites are cleared e. A DPO may request, for instance, contractual liability limitations, professional liability insurance paid by the company, a certain team and budget.
Evaluate such options and be prepared to confirm whether such requests can be accepted. No compliance program can be successful if top management commitment is missing. Think about a remuneration system that secures the independence and the long-term dedication of the DPO, such as deferred bonus system, long term incentive plan, etc. Think about benefits, evaluation criteria and KPIs. Assuming an assessment that would validate a management contract for this purpose, such civil contract would certainly allow better flexibility in terms of liability and termination.
Moreover, by also assuming a reporting of the DPO to the top management level, a civil contract may be more suitable for this top level position with advisory and supervision role. In any event, when a DPO would be retained under an employment contract, the following would apply under Romanian law: i the termination of an employee is rather strict and formal, ii employees can obtain in court reinstatement on the previous position, iii the burden of the proof lies with the employer, iv the employee can admit its civil liability towards the employer up to a certain limit, a court decision being necessary for the excess, v salary withholdings are also limited, vi there are opinions that liquidated damages clauses are not allowed in employment relations, vii employees cannot waive their legal rights, etc.
Moreover, irrespective of the contractual ground, an individual internal DPO should be far less solvable than an external DPO in case of a liability claim. Irrespective of this common view and approach of Art.
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