Frequently Asked Questions on Article 27 GDPR
Does my company need an Art 27 GDPR representative in the EU?
Companies established outside the EU are required to appoint an EU representative according to Art. 27 of GDPR if they:
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offer goods and services to individuals in the EU (e.g. providing a website in an EU language, offering payments in EUR) or
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monitor their behaviour (e.g. cookie profiling).
According to the Guideline 3/2018 of the European Data Protection Board (EDPB) on the territorial scope of GDPR, this applies to controllers and processors as well. For processors not established in the European Union the applicability of GDPR depends on what the “processing activities” are related to. If the data processing conducted for the controller is related to the offering of goods and services or to the monitoring of behaviour, GDPR applies to the processor in addition to the controller.
According to Art 27 GDPR, controllers or processors are exempted from the regulation if ALL of the following criteria are met:
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personal data is only processed occasionally, which is only from time to time and non-systematic; AND
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data processing does not include large-scale processing of special categories of personal data or personal data relating to criminal convictions and offences; AND
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data processing is unlikely to result in a risk to the rights and freedoms of data subjects.
It is hard to meet ALL of these criteria, in particular the criterion of processing data only occasionally proves to be a big hurdle for most businesses.
Your company's intention to establish commercial relations with EU customers needs to have manifested in a business activity. The mere accessibility of a website in the EU, a mention on the website of an e-mail or geographical address, or of a telephone number without an international code, does not, of itself, provide sufficient evidence to demonstrate the intention to offer goods or services to EU customers. The EDPB listed the factors to be taken into account when assessing if goods and services are offered in its Guideline 3/2018 on the territorial scope of GDPR. Some of the factors are:
- using languages of EU Member States or offering payments in a currency of an EU Member State;
- using Google or Facebook ads to address the EU market or any other marketing activity directed towards EU customers;
- mentioning EU references or testimonials;
- an international nature of the activity at hand, such as certain tourist activities;
- mentioning dedicated addresses or phone numbers to be reached from an EU country;
- use of EU top-level domains;
- description of travel instructions from one or more other EU
Member States to the place
where the service is provided; - offering the delivery of goods to EU Member States;
In a nutshell, if your company has any outbound activity in the EU or if your company enables or guides EU customers to find your company's product, GDPR is likely to apply.
Not all online collection or analysis of personal data of individuals in the EU counts automatically as “monitoring”. Monitoring the behaviour of EU data subjects implies an intention to collect data for a specific purpose. Therefore, any kind of tracking of natural persons on the Internet, including the potential subsequent use of profiling techniques qualifies as "monitoring". Again, the EDPB gives some more guidance in the Guidelines 03/2018. According to the EDPB, monitoring may not only take place in the internet but also through wearables and other smart devices. Monitoring activities include:
- Behavioural advertisement
- Geo-localisation activities, in particular for marketing purposes
- Online tracking through the use of cookies or other tracking techniques such as fingerprinting
- Personalised diet and health analytics services online
- CCTV
- Market surveys and other behavioural studies based on individual profiles
- Monitoring or regular reporting on an individual’s health status
The GDPR extends its ‘territorial scope’ to controllers and processors that have their registered office in a country outside of the EU. As a result, the exorbitantly high penalties of up to €10 million or 2% of the worldwide annual turnover can apply if a processor or a controller does not comply with the obligation of appointing an EU representative. The penalties may be enforced by individual claims or by authorities. Furthermore, your partners in the EU may be obliged to stop transferring data to your company.
What to look for in an Art 27 representative?
The representative shall act as a middleman between authorities and data subjects on the one hand and the processor and controller outside the EU on the other hand. The representative needs to be mandated by the controller or processor in writing to be addressed by supervisory authorities and data subjects on all privacy issues. Furthermore, the representative shall, according to Art 30 GDPR, maintain the records of processing activities and shall make the record available to the supervisory authority on request.
There are two big myths about the best location of a representative:
- you need a representative in every EU Member State; and
- the location of the representative determines which data protection authority is the lead supervisory authority.
Both of these myths are wrong. The EDPB clarifies in its Guideline 03/2018 on territorial scope that only one representative needs to be appointed which can then act in all other member states, and that the concept of a lead supervisory authority does not apply in case of non-EU companies.
Our goal is to enable non-European companies to comply with GDPR through a combination of legal expertise and technology to deliver this expertise. We put the practical insights we gain as a law firm due to our role as the appointed Data Protection Officer (DPO) for major banks, financial service providers, tech companies,... into the development of our tools such as our Data Subject Access Request (DSAR) tool for the records of processing activities, and our automation of the role of a representative. We support you in all privacy related matters and above all in helping your business grow by enabling you to improve customer trust by handling privacy matters in an efficient and professional way.
PrighterGDPR-Rep offers representation as a service complying with Art. 27 GDPR. The basic service of PrighterGDPR-Rep contains:
- Art. 27 GDPR compliant representative located in Europe acting as a one-stop-shop for all EU-Member States;
- privacy landing page for Clients, which can be individualised with the Client’s logo;
- a DSAR management tool to structure privacy requests and handle these from a formal point of view, including a request management workflow;
- unlimited forwarding of electronic requests from data subjects;
- unlimited forwarding of postal messages from data subjects;
- unlimited forwarding of requests from supervisory authorities;
- a company dashboard to manage all privacy requests and the subscription;
- information to be included in the Client’s privacy policy regarding the appointment of PrighterGDPR-Rep as their representative;
- certificate for appointing PrighterGDPR-Rep as the client’s representative, which the client can include in their website.
- Individual bespoke legal services, especially answering requests from data subjects or authorities. Advisory or consulting services are not included in the SaaS solution but are offered separately by iuro.
PrighterGDPR-Rep, provided by Maetzler Rechtsanwalts GmbH & Co KG, is under supervision of the Vienna Bar Association (national supervisory authority) and complies with the Austrian bar rules (RAO, RL-BA) on IT security and data privacy compliance. Maetzler Rechtsanwalts GmbH & Co KG is bound by applicable rules of professional secrecy with regard to the contents of the consultation and data obtained and processed in relation to Art 27 representation. Critical communication infrastructure components are operated by a service provider approved by the Austria bar association. They are audited at least annually against SOC 1 (SSAE18, ISAE 3402) and SOC 2 (AT Section 101) standards. Relevant data centre(s) are certified in the international standard ISO/IEC 27001:2013 and PCI-DSS.
How can my company appoint PrighterGDPR-Rep as my representative?
The onboarding process is simple and can be completed in a couple of minutes, but the best part is: We grant your company a Free 30 day trial to keep the appointment completely risk-free.
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Choose a plan. The available plans depend on your company's size. The size of the company is defined according to the Eurostat categories and therefore by the number of persons employed. "Employees" includes part-time workers and freelancers.
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Enter your company's details. Your risk-free 30 day trial period starts when you complete this step.
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After registering, you will find a download button for the Power of Attorney (PoA). A signed PoA is required as evidence of the appointment of Prighter as your representative in case of requests by supervisory authorities. We kindly ask you to sign and upload your PoA.
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Our team will check and verify the provided information on your company and the PoA. This is usually done within a couple of hours.
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After the PoA has been approved, your company has successfully appointed PrighterGDPR-Rep as your Art. 27 representative. You can log in to your dashboard where you can find templates and information on what you can include in your homepage and privacy policy.
Every separate entity requires representation according to Art 27 GDPR. Nevertheless, PrighterGDPR-Rep offers your group the option to sign up for a group package to manage the representation of your affiliates through one main account, with sub-accounts for every affiliate. The requirement is a centralised data protection management within the group to handle both the main account and the sub-accounts with one centralised login. The number of affiliates covered depends on the package you signed up for. The "small enterprise" package includes one affiliate, the "medium enterprise" package includes up to 5 affiliates, and the "large enterprise' package includes an unlimited number of affiliates. All included group entities must operate in the same industry, offer the same range of products, and have the same or a linked brand.
You can choose between monthly, quarterly, or yearly payments. Your company gets a discount for quarterly payments and an even higher discount for the yearly payments option. Please note that your company's options to terminate the subscription depend on the chosen payment period.
Furthermore, you can choose between paying with credit card, via bank transfer or via PayPal. We accept almost all credit cards and bank transfers in Euro and US Dollars. Please contact our support team should you have any further questions!
How can my company manage the representation?
In the event that individuals contact PrighterGDPR-Rep with requests addressed to your company, PrighterGDPR-Rep is processing personal data for your company. The data processing agreement for this type of processing is attached to your engagement letter which is provided to you during the onboarding process.