Regarding the professional qualities and expert knowledge of data protection law and practices (Art. 37, Para. 5 GDPR) the draft requires the DPO to have at least three years working experience, proven by her or his employees’ statements. Alternatively, the DPO can submit national or international certificates about his or her trainings in the field of data protection law. It is unclear whether the three years working experience can also be proven by organisations the DPO has cooperated with based on a contract other than employment contract (e.g. as an independent consultant). In our opinion the wording should be interpreted in this way, i.e. in favour of the DPO.
According to the draft, the DPO of a state body (the term state body not relating to every public sector organisation) will have to be employed in the public sector, however not necessarily by the state body which has designated her or him as the DPO, with on notable exception of ministries, where the DPO shall have to be employed by the ministry in question or by one of the bodies within the ministry. Other public sector bodies and organisations may designate a DPO not employed in the public sector, however only if they cannot find a suitable person who is employed in the public sector. These are in our view questionable provisions in the light of both the GDPR provisions and the principles of free competition. The more so as we see no reasonable grounds for such discrimination.
Another deviation from the GDPR is the possibility for the controllers and processors to designate a deputy-DPO for the time of the DPO’s absence or restraint. No requirements are set out regarding the professional experience of the deputy-DPO. Therefore, in our opinion, the operations of the deputy-DPO should be confined to urgent cases and short time periods. In case of longer DPO’s absence or restraint a new DPO should be designated.
With the aim of facilitating the exercise of the rights of individuals, the draft also calls for the names of the DPOs to be published, together with the names of their respective controllers and processor, on the website of Slovenia’s data protection authority (Informacijski pooblaščenec).
Article provided by: Matija Jamnik (Lawyer, JK Group d.o.o.)
