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

3 Aug 2026

Pay Transparency: the first requests from employees are starting to arrive (Il Sole 24 Ore, 3 august 2026 – Vittorio De Luca)

Two months after the decree. Since Legislative Decree 96/2026 came into force on 7 June, according to a flash survey conducted by GIDP, 8% of HR directors have…

30 Jul 2026

Corporate controls and data protection: what balance?

A recent judgment of the Court of Pisa, No. 800 of 13 June 2026, addresses a topic of particular interest for companies: the delicate balance between the protection…

30 Jul 2026

Unfair dismissal and reinstatement: the employee must repay the payment in lieu of notice

With order no. 22187 of 28 June 2026, the Italian Supreme Court addressed the issue of whether payment in lieu of notice paid to an employee must be…

30 Jul 2026

Did you know that… an employee’s natural incapacity does not prevent the time limit for challenging a dismissal from running?

In judgment no. 23486 of 18 July 2026, the Joint Chambers of the Italian Supreme Court (i.e. “Corte di Cassazione”) held that the natural incapacity of an employee…

22 Jul 2026

An employee may not steer clients toward a competitor before resigning (Camera di Commercio Francese in Italia, 22 July 2026 – Vittorio De Luca, Silvia Zulato)

With Order No. 1723 of 26 May 2026, the Italian Supreme Court (Corte di Cassazione) confirmed the liability of an employee who, prior to the termination of his…

20 Jul 2026

Access to Naspi (Top24 Lavoro Ai – Il Sole 24 Ore, 20 July 2026 – Vittorio De Luca e Alessandra Zilla)

Regulatory Framework  The New Social Insurance for Employment (NASpI), introduced by Legislative Decree No. 22 of 4 March 2015, is the primary income support scheme for employees who…