Data Processing Agreements: Legal Security for Your Data Processing

Data Processing Agreements (DPA)

Learn more about the legal requirements for data processing agreements: When they are required, what content they must contain, and how we can support your business with legally secure contract solutions.






Fundamentals of Data Processing Agreements

What is a Data Processing Agreement?


A Data Processing Agreement (DPA) is a legally binding document that regulates the relationship between a controller (client) and a processor (service provider) in the context of processing personal data. It is anchored in Article 28 of the GDPR and represents a central element for ensuring data protection when outsourcing data processing processes.

When is a DPA required?


A DPA must always be concluded when a company (controller) commissions a service provider (processor) to process personal data. This includes typical scenarios such as using external IT service providers, commissioning marketing service providers, integrating external support services, outsourcing HR functions, commissioning call centers, or using analytics tools.

What distinguishes controllers from processors?


A controller decides on the purposes and means of data processing, while a processor processes personal data on behalf of and according to the instructions of the controller. In cases of joint controllership, two or more controllers jointly decide on the purposes and means of processing, which requires an agreement according to Art. 26 GDPR.

What content must a DPA contain?


A legally compliant DPA must define the subject matter, duration, nature, and purpose of processing. It must also define the rights and obligations of both parties, describe technical and organizational measures, contain regulations for supporting the controller with data subject rights, and establish requirements for sub-processors and deletion concepts.

What risks arise from a missing DPA?


The absence of a DPA or a deficient DPA can lead to fines of up to 10 million euros or 2% of global annual turnover. Additionally, the controller can be liable for data protection violations by the processor, unclear responsibilities can arise in case of data breaches, and reputational damage can occur when compliance deficiencies become known.

How should the implementation of a DPA be carried out in practice?


Practical implementation includes identifying all relevant service providers, reviewing the necessity of a DPA, negotiating and concluding legally secure contracts, regularly reviewing and updating existing DPAs, and documenting all measures to demonstrate GDPR compliance within the framework of accountability obligations.

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Mandatory Contents of a Data Processing Agreement

What elements must a DPA contain according to Article 28 GDPR?


A legally secure DPA must include numerous mandatory contents according to Article 28 GDPR. These include the precise description of the subject matter and duration of processing, the nature and purpose of data processing, as well as the categories of processed data and affected persons. Additionally, the processor's obligation to follow instructions, the confidentiality commitment of all involved persons, and the technical and organizational measures for data protection must be clearly defined.

How are sub-processors regulated in the DPA?


The regulation regarding the use of sub-processors is a central component of a DPA. Typically, it is stipulated that commissioning sub-processors is only permissible with prior written consent from the controller. The processor must inform the controller of any intended changes and ensure that sub-processors also comply with the same data protection obligations as the processor itself.

What support obligations does the processor have?


The processor is obligated to support the controller in fulfilling data subject rights. This includes assistance with information requests, correction and deletion requests, as well as requests for data portability. Additionally, they must provide support in complying with other data protection obligations, particularly in ensuring data security, reporting data breaches, conducting data protection impact assessments, and in prior consultations with supervisory authorities.

What applies to the termination of data processing?


The DPA must clearly regulate what happens to personal data after processing is completed. By default, it should be stipulated that the processor either deletes all personal data or returns it to the controller, unless there is a legal obligation for continued storage. The deletion or return must be demonstrable and documented where possible.

What special requirements apply to third-country transfers?


For data transfers to countries outside the EU/EEA, additional precautions must be taken in the DPA. This includes explicit regulation of third-country transfers with specification of recipient countries, implementation of appropriate safeguards such as EU standard contractual clauses, and documentation of a risk assessment. Since the "Schrems II" ruling by the ECJ, the requirements for international data transfers have increased significantly and require thorough examination and documentation.

What errors frequently occur with DPAs in practice?


In practice, DPAs often have deficiencies that can lead to their invalidity. The most common errors include overly unspecific descriptions of processing, missing or unclear regulations regarding sub-processors, insufficient descriptions of technical and organizational measures, missing definition of instruction and control rights, and incomplete deletion concepts. The use of outdated contract templates that do not meet current GDPR requirements also represents a significant risk.

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Our Services for Data Processing Agreements

Why is professional support for DPAs so important?


The legally secure design of DPAs requires specialized expertise due to complex legal requirements that continuously evolve through new case law. Particular challenges include distinguishing between data processing and joint controllership, international data transfers following the "Schrems II" ruling, and the precise description of technical and organizational measures. Our experts support you with sound expertise and years of practical experience in all aspects related to DPAs.

How do we create customized DPAs?


We create individual DPAs that are precisely tailored to your specific requirements. This includes legally secure contract design according to Art. 28 GDPR, precise description of processing activities and data flows, and detailed presentation of technical and organizational measures. We also ensure clear regulations for instruction and control rights, legally compliant design for international data transfers, and harmonization with existing contractual relationships.

What advantages does our review of existing DPAs offer?


For existing DPAs, we offer a comprehensive review with concrete adjustment recommendations. This includes checking for completeness and legal compliance according to current legal requirements, identifying gaps or risks, and evaluating the described technical and organizational measures. We also review regulations for sub-processors and third-country transfers and create a detailed report with adjustment recommendations, taking over the revision and updating of the DPA if needed.

What does our DPA management system include?


For companies with numerous service provider relationships, we develop a structured DPA management system. This includes creating a service provider overview with assessment of DPA obligations, developing standardized DPA templates for different service provider types, and defining a process for DPA conclusion, updating, and control. Additionally, we implement sub-processor management, build a documentation and evidence system, and train responsible employees in using the system.

How do we support negotiations with service providers?


We support you in negotiations with your service providers for concluding legally compliant DPAs. This includes legal assessment of submitted DPA drafts, identification of critical contract points, and development of alternative formulations. We help enforce necessary adjustments, assess the TOMs specified by the service provider, and negotiate third-country transfers and sub-processor regulations. Upon request, we also take over direct negotiation with the service provider to ensure that your DPAs not only meet formal requirements but also optimally protect your interests.

What advantages does professional DPA consulting offer?


Professional DPA consulting offers numerous advantages for your company. It minimizes the risk of fines and liability claims through legally secure contract design, optimizes your business processes through clear responsibilities and obligations, and improves your compliance position in data protection audits. It also creates legal certainty for international data transfers, enables efficient management of numerous service provider relationships, and strengthens your negotiating position with service providers through sound legal expertise.

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Data Protection Services for Your Business

  • Data Protection Consulting

    Initial Data Protection Consultation

    Our data protection experts analyze your current situation and provide concrete action recommendations for GDPR-compliant implementation.

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  • Data Protection Documents

    Individual Data Protection Documents

    We create and maintain all relevant documents such as DPAs, TOMs, policies, and evidence – legally secure and up-to-date.

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  • Audit

    Data Protection Audit

    We review your processes, contracts, and documentation for GDPR compliance and help with optimization.

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  • Training

    Training & Awareness

    We train your employees practically on data protection topics – online or on-site – and promote data protection-compliant behavior.

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