Article 28 GDPR: Controller and Processor Obligations

Article 28 of the GDPR is arguably one of the most important provisions in practical terms, as it imposes a series of practical obligations on data controllers (DC) in managing the processors (PR) who work with personal data.

Article 28 applies when a separate entity processes personal data on a controller’s behalf. Access to data is a reason to investigate the relationship, not a sufficient role classification: an independent controller, joint controller or employee is not automatically a processor.

Here are some practical examples:

1. An organization uses HR software or a CRM hosted in SaaS mode (web platform) (the platform publisher will then be the PR).
2. An organization requests IT assistance from a company - with remote access to employees’ computers (the IT company is then the PR).
3. A SaaS software publisher uses subcontractors - for example, for sending SMS messages - the PR will then be in relation with a sub-processor - Article 28 will also apply to the PR who must ensure that their sub-processor complies with the conditions imposed by the GDPR.

Here, the GDPR aims to regulate the entire personal data processing chain to ensure that the obligations imposed on the data controller follow the data at all times and provide adequate protection. This is especially important for cross-border data transfers where processors may be located outside the EU.

For a vendor document already on your desk, the DPA clause and annex review guide turns these legal obligations into a contract review record. This page explains the duties and statutory framework behind that review.

I. - The Main Obligations Imposed by Article 28 (Summary)

If we analyze the details of Article 28 (see below), here are the main obligations it imposes:

• The data controller must exclusively use processors that provide sufficient guarantees.
• The processor cannot subcontract without the data controller’s authorization.
• Processing must be governed by a binding written contract or other legal act under Union or Member State law, including electronic form.
• At the controller’s choice, the processor must delete or return personal data after the service and delete existing copies, unless Union or Member State law requires storage; plan this alongside storage limitation.
• The processor can only act on the data on the instruction of the data controller.

Here is an example of a standard contract between DC and PR that will give you a clear idea of what is required in legal terms. Adapt the scope and annexes to the actual processing rather than treating a template as evidence that a supplier is suitable.

II. - How to Comply with Article 28

To bring an organization into compliance, it is necessary to go through three steps that will allow for the inventory and evaluation of the compliance of the processors.

A. - Understanding the Concepts of Controller and Processor

Firstly, ensure a good understanding of the concepts of processors and controllers, without which it will be difficult to qualify the relationships between each organization. Some subcontractors in the classical sense are not subcontractors in the GDPR sense.

Alternatively, you can also read our article on the concept of a GDPR processor which goes into more detail on these points.

B. - Inventorying All Processors

Next, it is necessary to conduct an inventory of all processors involved in data processing operations, as part of a broader GDPR compliance audit. For this, it is appropriate to list all the companies or organizations that will have access in one way or another to the personal data of the company.

This will then allow us to carry out a precise evaluation of the processor’s compliance with each criterion imposed by the GDPR:

C. - Evaluating the Processors

Evaluate the purchased service against Article 28 and the EDPB controller/processor guidance. A supplier’s promise to improve later does not excuse a missing contract or inadequate security now.

Use a finding register with the requirement, clause or evidence, gap, affected processing, owner and decision. If a payroll provider permits unrestricted support access but promises only “industry-standard security”, obtain the actual access controls and assurance evidence. Decide whether sufficient guarantees exist before authorising the processing.

D. - Make the contract operational

Before sending data, reconcile the signed DPA with the service configuration: legal entities, instructions, locations, authorised sub-processors and security annex version. Identify who receives breach alerts, who can request an audit, and who implements an instruction to delete or return data.

For general sub-processor authorisation, agree a notification channel that reaches the controller, enough information to assess each intended change, and time to object before it takes effect. A notice after processing has begun does not cure missing authorisation. Escalate unresolved objections under the agreed contract process.

At exit, test an export before the final service date, agree treatment of backups and legally retained copies, and retain evidence of the instruction and outcome. Distinguish restricted backup retention from continued operational use. This turns Article 28(3)(g) into a control that can be checked.

III - Article 28 in detail

Article 28 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:

(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.

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 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.

The classification follows the actual decisions about purposes and essential means, not the contractual label. A provider may be a processor for one activity and a controller for a separate use of the same data.

You may also want to review the GDPR compliance checklist to ensure your processor agreements cover all required elements.

FAQ

What does GDPR Article 28 require from data processors?

Article 28 requires that any processor processing data on behalf of a controller does so under a binding contract (DPA). The contract must specify the subject matter, duration, nature, purpose, data types, and processor obligations including security measures and sub-processor rules.

Is a Data Processing Agreement mandatory for every processor relationship?

Article 28(3) requires a binding contract or other qualifying legal act for processing on behalf of a controller. It must be in writing, including electronic form. There is no exemption based on small data volumes, but classify the relationship before assuming every contractor is a processor.

Can a processor use sub-processors without the controller’s permission?

No. Article 28(2) requires prior specific or general written authorisation from the controller before a processor can engage a sub-processor. With general authorisation, the processor must inform the controller of intended additions or replacements so the controller can object before the change.

What are the penalties for non-compliance with Article 28?

Article 83(4) places Article 28 infringements in the tier of up to €10 million or, for an undertaking, 2% of total worldwide annual turnover in the preceding financial year, whichever is higher. The actual sanction depends on the facts and Article 83 factors; corrective measures may also apply.