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 The GDPR aims to harmonize the data protection rules across the EU and to ensure consistent and effective enforcement of those rules. However, the GDPR also recognizes that there may be some differences in the interpretation and application of the law among the member states, depending on their national legislation, culture and practices. Therefore, the GDPR introduces the concept of the “main establishment” of a controller or processor, which is the place where the decisions on the purposes and means of the processing of personal data are taken in the EU1. The main establishment determines which national supervisory authority will act as the lead authority for the cross-border processing activities of that controller or processor, and which national law will apply in case of a dispute or a complaint2. The Article 29 Working Party, which is an advisory body composed of representatives of the national supervisory authorities, the European Data Protection Supervisor and the European Commission, has issued guidelines on how to identify the main establishment of a controller or processor under the GDPR3. The guidelines emphasize that the main establishment must reflect the reality of the processing activities and the effective and real exercise of management power over those activities. The guidelines also warn against the practice of “forum shopping”, which occurs when a controller or processor designates its main establishment in a member state with the most flexible or lenient data protection regime, regardless of the actual location of the decision-making or the data processing. The guidelines state that such a practice is forbidden under the GDPR, and that the supervisory authorities will closely monitor and verify the criteria used by the controllers or processors to determine their main establishment. If the supervisory authorities find that the main establishment does not correspond to the factual situation, they may challenge the designation and apply the relevant corrective measures4. References: 1 Art. 4 (16) GDPR – Definitions - General Data Protection Regulation (GDPR)2 Art. 56-58 GDPR – Cooperation and consistency - General Data Protection Regulation (GDPR)3 Guidelines 3/2018 on the territorial scope of the GDPR (Article 3) - European Data Protection Board4 Ibid, p. 14-15.

According to Article 37 of the GDPR, the designation of a data protection officer (DPO) is mandatory for controllers and processors in three cases1:

When the processing is carried out by a public authority or body, except for courts acting in their judicial capacity;

When the core activities of the controller or the processor consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects on a large scale; or

When the core activities of the controller or the processor consist of processing on a large scale of special categories of data pursuant to Article 9 and personal data relating to criminal convictions and offences referred to in Article 10.

The GDPR does not define what constitutes “regular and systematic monitoring” or “large scale”, but the Article 29 Working Party (now replaced by the European Data Protection Board) has provided some guidance on these concepts2. According to the guidance, “regular and systematic monitoring” includes all forms of tracking and profiling on the internet, including for the purposes of behavioural advertising, but also offline activities such as CCTV or health data monitoring. The guidance also suggests some criteria to assess whether the processing is carried out on a large scale, such as the number of data subjects concerned, the volume of data or the range of data items processed, the duration or permanence of the processing activity, and the geographical extent of the processing.

In the given scenario, option D is the only one that clearly falls under the second case of mandatory DPO designation, as it implies that the controller or processor is engaged in regular and systematic monitoring of data subjects on a large scale as part of their core activities. This could include, for example, online behavioural advertising, location tracking, loyalty programs, or health data analytics. The other options are not sufficient to trigger the obligation to appoint a DPO, unless they are combined with other factors that indicate a large scale or a high risk of the processing. For instance, option A is not relevant, as the GDPR does not set a threshold based on the size or number of employees of the organisation. Option B is also not decisive, as the GDPR does not distinguish between for-profit or non-profit purposes of the processing. Option C may require a DPO if the processing of financial information or information relating to children is done on a large scale and involves special categories of data, but it is not a general rule. References:

1: Article 37 of the GDPR

2: Guidelines on Data Protection Officers (‘DPOs’)

3: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)

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Consent is one of the legal bases for processing personal data under the GDPR, but it must meet certain conditions to be valid. According to Article 4(11) of the GDPR, consent means “any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.” In this scenario, consent would not be considered an adequate legal basis for accessing the party zone, because it is not freely given. Freely given consent means that the data subject has a genuine and free choice to agree or disagree to the processing, and that there is no detriment, coercion, or significant negative consequences if the data subject does not consent. However, in this case, the consent is conditional on accessing the party zone, which is the main purpose of the event. Therefore, the data subject does not have a real choice, and may feel pressured or obliged to consent in order to participate in the event. This violates the principle of free consent, and could invalidate the consent as a legal basis.

References:

•GDPR Article 4 - Definitions1

•GDPR Article 7 - Conditions for consent2

•Guidelines 05/2020 on consent under Regulation 2016/6793