Categories: Insights, Practice

Tag: Autorità Garante, GDPR, Medico Competente


31 Aug 2020

Company Physician: Independent data controller

On 23 June 2020, the Italian Data Protection Authority (“Garante“) published the “2019 Annual Report” (the “Report“) listing activities carried out during the previous calendar year.

With the publication of the Report, the Data Protection Authority has confirmed what had already been stated in the note ref. no. 7797, dated 27 February 2019, concerning the subjective qualification of the Company Physician (as defined by art. 38 of Legislative Decree 81/2008, the “Decree”)

It is necessary to make a brief introduction to better understand the issue.

Article 4 of the (EU) Personal Data Protection Regulation (the “Regulation“) defines the Data Controller as (i) “the individual or legal person, public authority, service or other body which, individually or jointly with others, determines the personal data processing purposes and means” and the Data Processor as (ii) “the individual or legal person, public authority, service or other body which processes personal data on behalf of the data controller.”

Since the first interpretations and applications of the Regulation, the legal theory opened a debate on the Company Physician’s correct subjective qualification for data processing carried out during the functions and tasks assigned by the Decree.

The legal theory

Part of the theory suggested that the Company Physician was a Data Processor (under art. 28 of the Regulation), and the employer was the sole Data Controller which has the task of determining the purposes and means of the processing carried out by the professional. This theory was based on the relationship between the employer and the Company Physician was regulated by a contract by which the latter was expressly authorised by the employer to carry out employee personal data processing (including data belonging to special categories, formerly “sensitive” data).

Conversely, a different part of the theory stated the Company Physician was an independent Data Controller, as the processing purposes were established by the Decree and not by the employer.

The Data Protection Authority’s position

This latter idea was expressly confirmed by the Data Protection Authority, which qualifies the Company Physician as an independent Data Controller. The type of processing carried out by the professional (for example, health monitoring or preparing health records) is their prerogative and not the employer’s.

In terms of sanctions, according to the Data Protection Authority, the regulatory framework makes a precise distinction between the employer and Company Physician’s responsibilities.

Others Insights related:

Subscribe to our newsletter

Contact

Need information? Write to us and our team of experts will respond as soon as possible.

Fill in the form

More news and insights

20 May 2026

Webinar “May 1st Decree: Key Updates and what’s New” –  HR Coffee with De Luca & Partners

On the occasion of our webinar “An HR Coffee with De Luca Partners,” the speakers Silvia Zulato, Senior Associate, and Alessandro Riccardo Polli from the Labour Consulting Division…

12 May 2026

Legitimate dismissal for false attendance reporting and misuse of access system data (Camera di Commercio Francese in Italia – Vittorio De Luca, Silvia Zulato)

With Order No. 7985 of 31 March 2026, the Italian Supreme Court – Labour Section – confirmed the lawfulness of a dismissal for just cause imposed on an…

30 Apr 2026

Webinar “Bonuses: What Do You Need to Know About Objectives?” – HR Coffee with De Luca & Partners

Yesterday, during our first webinar “HR Coffee with De Luca & Partners", the speakers Vittorio De Luca, Managing Partner, and Alessandra Zilla, Managing Associate at De Luca &…

27 Apr 2026

Management of corporate email after termination of employment: the Italian Data Protection Authority extends the right of access to all emails in the individual email account 

“An employee may access the messages in their corporate email account and the documents stored on their computer after the termination of employment. Any limitations must be justified by specific…

27 Apr 2026

Unemployment benefits and resignation following transfer beyond 50 km: distance alone is not sufficient, employer’s breach must be proven  

With order no. 10559 of 21 April 2026, the Italian Supreme Court addressed the issue of unemployment benefits (i.e. “NASpI”) in the context of resignations for just cause following…

27 Apr 2026

DID YOU KNOW THAT… the probationary period clause is null and void if the duties are described in generic terms? 

The Court of Milan, with judgment no. 683 of 3 April 2026, reaffirmed that a probationary clause (i.e. “patto di prova”) is valid only if it contains a specific indication of the duties subject to…