More of GDPR Comes Into Focus: Fines, DPOs and Breaches

With eight trilogue meetings in the books, the negotiators looking to reach a final draft of the EU’s General Data Protection Regulation by Christmas are in the home stretch. Yet again this week, Green MEP Jan Philipp Albrecht, Parliamentarian rapporteur for the GDPR, reported a goal of reaching an agreement before the end of the year. No party from the Commission or Council has indicated anything to the contrary.

Rather, we are now seeing the release of compromise positions as lobbying from consumer and industry groups intensify.

Most recently, released two documents from the Luxembourg presidency, the first is a 186-page consolidated draft of the entire document in “preparation for trilogue,” which will continue with meetings December 10 and 15, the second is a targeted summary of proposed compromise positions that the Luxembourg presidency would like for the full Council to consider.

The presidency asks that the Council’s Committee of Permanent Representatives (COREPER) consider the recommended compromise positions when it meets tomorrow, Dec. 2.

These compromise positions may be the best indication yet of where three hot-button issues could resolve: data breach notification requirements, the question of imposing mandatory data protection officers (DPOs) and the amount of potential sanctions for violations.

First, data breach notification. The EU Commission’s initial text indicated a deadline of 24 hours following the discovery of a breach to begin notification to a data protection authority. Many in the business world felt this was both onerous in practice and unlikely to protect data in that it would not give time for forensics teams to fully understand the nature of a breach before reporting it.

Parliament has offered a compromise to 72 hours and has introduced the idea of perceived risk to affected individuals affecting the need for notification.

Extending this, the presidency suggests that 72 hours is sufficient time and that those suffering a breach should notify within that time frame “unless the personal data breach is unlikely to result in a risk for the rights and freedoms of individuals.” Further, the suggested draft would allow companies to notify later as long as “reasoned justification” is supplied to the data protection authority (DPA).

Organizations would also be required to document all breaches, regardless of risk, and be able to supply that documentation to DPAs upon request, to prove compliance with the GDPR.

Second, there is the issue of the “mandatory Data Protection Officer.” Both the Parliament and Commission have indicated this is a place where they will insist, though Council has suggested that a DPO merely be encouraged. The Commission draft triggered the DPO at 250 employees. The Parliament draft triggered the DPO at 5,000 data subjects. However, there was general talk that the trigger should more appropriately be involved with the type of data collected, held and processed.

Recognizing the Parliament’s position, the presidency suggests a compromise whereby the DPO would be mandatory on three conditions:

  • the processing is carried out by a public body, other than the courts dealing with criminal information, which will be dealt with in the law-enforcement directive;
  • the core activities of the controller or processor involve “regular and systematic monitoring of the data subjects on a large scale," 
  • the controller or processor is handling a “large scale” of data of a special category, defined in Article 9 as data “revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of genetic data, biometric uniquely identifying a person or data concerning health or sex life and sexual orientation.”

The definition of "large scale" is not supplied.

Further, the presidency suggests that the appointment of that mandatory DPO have a 12-month grace period from the GDPR’s coming into force, which is currently two years from the 20th day following the GDPR’s publication in the Official Journal of the European Union, so organizations would have some three years to figure out their DPO requirements and get someone in place.

Organizations could share DPOs with other organizations and the DPO can have other duties inside an organization.

Finally, there is the matter of fines for GDPR infractions. Much has been made of the Parliament draft that suggests maximum fines of 100,000,000 EUR or 5 percent of annual global turnover. The Council’s maximum fine was still significant, but a much more modest 1,000,000 or 2 percent of annual turnover.

The presidency’s suggested compromise would create a three-tiered system with different maximum fines for different transgressions:

  • violating the obligations of controllers in the document would carry a maximum penalty of 1,000,000 EUR or 2 percent of turnover;
  • violating the rights of data subjects directly would carry a maximum penalty of 2,000,000 EUR or 4 percent of turnover, and
  • violating the order of a DPA would carry a maximum penalty of 1,000,000 EUR or 2 percent of turnover.

Already, the European Data Coalition (EDC) has responded to this last compromise suggestion, suggesting it is “excessive and enormously unfair.” Specifically, the EDC’s spokesperson, Rene Summer, is concerned that the penalties discriminate against companies with high turnover and low margin and don’t take into account “the share of global revenue that is relevant for the geographical applicability of the region.”

The EDC also calls for a 10,000,000 euro hard cap, a “pyramid” of enforcement that would include DPA contact and a warning letter before sanction, proof of “serious harm” and a requirement that “only the lead authority should have the power to issue penalties.”

How the trilogue negotiators will take these pieces of feedback, and whether the Council as a whole will even accept the presidency’s suggestions, is still to be determined. However, the presidency does ask that COREPER consider the suggestions “with a view to confirmation” and asks for a mandate to take them into trilogue with the Commission and Parliament.

As these suggested positions are not far from Parliament’s proposals, it may very well be that these compromise positions are quite close to the language that will become part of the final GDPR agreement. With only two more scheduled trilogues on the docket, the world will know one way or the other in relatively short order.

Photo credit: Supplied by Luxembourg presidency, copyright SIP

Written By

Sam Pfeifle


If you want to comment on this post, you need to login.


Board of Directors

See the esteemed group of leaders shaping the future of the IAPP.

Contact Us

Need someone to talk to? We’re here for you.

IAPP Staff

Looking for someone specific? Visit the staff directory.

Learn more about the IAPP»

Daily Dashboard

The day’s top stories from around the world

Privacy Perspectives

Where the real conversations in privacy happen

The Privacy Advisor

Original reporting and feature articles on the latest privacy developments

Privacy Tracker

Alerts and legal analysis of legislative trends

Privacy Tech

Exploring the technology of privacy

Canada Dashboard Digest

A roundup of the top Canadian privacy news

Europe Data Protection Digest

A roundup of the top European data protection news

Asia-Pacific Dashboard Digest

A roundup of the top privacy news from the Asia-Pacific region

Latin America Dashboard Digest

A roundup of the top privacy news from Latin America

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Get more News »

IAPP Communities

Meet locally with privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

IAPP Job Board

Looking for a new challenge, or need to hire your next privacy pro? The IAPP Job Board is the answer.

Join the Privacy List

Have ideas? Need advice? Subscribe to the Privacy List. It’s crowdsourcing, with an exceptional crowd.

Find a KnowledgeNet Chapter Near You

Talk privacy and network with local members at IAPP KnowledgeNet Chapter meetings, taking place worldwide.

Find more ways to Connect »

Find a Privacy Training Class

Two-day privacy training classes are held around the world. See the complete schedule now.

The Privacy Core™ Library Has Evolved

Privacy Core™ e-learning essentials just expanded to include seven new units for marketers. Keep your data safe and your staff in the know!

Online Privacy Training

Build your knowledge. The privacy know-how you need is just a click away.

Upcoming Web Conferences

See our list of upcoming web conferences. Just log on, listen in and learn!

Train Your Team

Get your team up to speed on privacy by bringing IAPP training to your organization.

Let’s Get You DPO Ready

There’s no better time to train than right now! We have all the resources you need to meet the challenges of the GDPR.

Learn more »

CIPP Certification

The global standard for the go-to person for privacy laws, regulations and frameworks

CIPM Certification

The first and only privacy certification for professionals who manage day-to-day operations

CIPT Certification

The industry benchmark for IT professionals worldwide to validate their knowledge of privacy requirements

FIP Designation

Recognizing the advanced knowledge and issue-spotting skills a privacy pro must attain in today’s complex world of data privacy.

Certify Your Staff

Find out how you can bring the world’s only globally recognized privacy certification to a group in your organization.


The IAPP’S CIPP/E and CIPM are the ANSI/ISO-accredited, industry-recognized combination for DPO readiness. Learn more today.

Learn more about IAPP certification »

IAPP-OneTrust Website Scanning & Cookie Compliance Tool

Scan your website for cookies, tags, forms and policies and create a custom, dynamically updated cookie policy based on the results of your scans.

Are You Ready for the GDPR?

Check out the IAPP's EU Data Protection Reform page for all the tools and resources you need.

Privacy Vendor List

Find a privacy vendor to meet your needs with our filterable list of global service providers.

IAPP Communities

Meet locally with privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

More Resources »

Global Privacy Summit 2017

The world’s premier privacy conference returns with the sharpest minds and unparalleled programs—plus a whole new spin on Active Learning!

Canada Privacy Symposium 2017

The Symposium returns to Toronto! Take advantage of Early Bird rates before March 31 and join your fellow privacy pros for a stellar program.

The Privacy Bar Section Forum 2017

The Privacy Bar Section Forum is SOLD OUT and the wait list is closed. If you got on the wait list, we'll keep in touch about your status. Good luck!

Asia Privacy Forum 2017

Join us in Singapore for exclusive networking and intensive education on data protection trends and challenges in the Asia Pacific region.

Privacy. Security. Risk. 2017

We're bringing the best of the best in privacy and infosecurity to sunny San Diego. Early registration for P.S.R. opens in May.

Europe Data Protection Congress 2017

Your source for European policy debate, multi-level strategic thinking and thought-provoking discussion. Registration opens in early June.

Sponsor an Event

Increase visibility for your organization—check out sponsorship opportunities today.

More Conferences »

Become a Member

Start taking advantage of the many IAPP member benefits today

Corporate Members

See our list of high-profile corporate members—and find out why you should become one, too

Renew Your Membership

Don’t miss out for a minute—continue accessing your benefits

Join the IAPP»