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2021-0.857.225 ( D196.020) Dismissal of a request for rules of conduct (not “one-company rules of conduct”).

24/01/2022 by Andreas Schindler

In its decision of December 9, 2021, the data protection authority addressed the admissibility of an application for approval of rules of conduct for a universal service provider (“universal service provider CoC”). The request was made by the universal service provider itself.
With regard to the requirements for approval of rules of conduct, it should first be noted that, according to the wording of Art. 40 par. 2 and para. 5 GDPR can only be provided by associations and other associations representing categories of controllers or processors. Accordingly, it is impossible for a single company (representing an industry) to submit such an application.
Moreover, it is alien to the concept of rules of conduct under data protection law that they should apply exclusively to a single company – i.e., the current universal service provider in Austria. From the wording of Art. 40 para. 2 GDPR states that rules of conduct must be relevant for several companies. This is also expressed in recital 98 of the Regulation, according to which the “special needs of micro, small and medium-sized enterprises shall be taken into account” when drawing up codes of conduct.
The applicant’s argument that in the future there will also be other companies
pursuant to Section 12 of the PMG, it was to be countered that there was only one universal service provider in Austria at the time of the relevant decision by the data protection authority, and that this provider was not authorized to represent possible additional universal service providers.
In the opinion of the data protection authority, rules of conduct that only apply to one company are not compatible with the requirements of the GDPR. The aforementioned universal service provider is not thereby precluded from participating in rules of conduct under data protection law, as it may be subject to (existing or future) rules of conduct relevant to its areas of activity.
As a result, the application had to be rejected. This decision is not legally binding.

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