Dpa Review

dpa-review

When to use

• A counterparty sends a DPA (their paper or yours) and the question is where the GDPR Art. 28 obligations are met, partial, or missing — before an attorney spends time on it.
• An existing processing relationship is being re-papered (new sub-processor chain, new transfer route, new scope) and the Art. 28 surface must be re-walked.
• You need a structured gap frame and the open questions an attorney must resolve — not a redline and not a verdict.

Do NOT use for clause-level redlining of a general contract (route to contract-review), for the regulatory-regime delta read in isolation (route to privacy-review), or for the classification / retention / transfer-mechanism operational surface (route to data-handling-judgment). This skill walks the Art. 28 agreement; those skills produce the inputs it cites.

Procedure

Step 0: Establish jurisdiction and refuse if out of scope

1. Read the DPA's governing-law / jurisdiction clause. Tag the output Jurisdiction: EU or Jurisdiction: DE.
2. If the DPA is governed by a non-EU/DE regime with no GDPR nexus (e.g. a pure US state-privacy regime), refuse the gap review: say "consult licensed local counsel". Note as an open question that GDPR may still apply extraterritorially under Art. 3 (EU-established controller/processor, or offering to / monitoring EU data subjects) — for the attorney to confirm.
3. No default positions ship. Read acceptable values (sub-processor notice window, audit frequency, liability cap, breach-notice deadline) from legal-practice-profile. Until configured, every such value is a [configure] placeholder in the output, not a guess.

Step 1: Fix the role — controller or processor

The Art. 28 reading forks on which side you are.

• You are the controller → you instruct. Read whether the agreement binds the processor to your instructions, confidentiality, security, sub-processor flow-down, assistance, deletion, and audit rights for you.
• You are the processor → you are bound. Read whether the obligations imposed are deliverable as written (audit cadence you can sustain, deletion you can actually perform, sub-processor flow-down you can pass down).
• Joint / unclear → flag it as the first open question; Art. 26 joint-controllership changes the frame.

Step 2: Walk the Art. 28(3) requirements as a checklist FLOOR (not ceiling)

For each, assign GREEN (present + adequate) / YELLOW (present but weak/ambiguous) / RED (missing or contradicts Art. 28):

1. (a) Documented instructions — processing only on the controller's documented instructions, incl. for transfers.
2. (b) Confidentiality — persons authorised to process are under a confidentiality commitment.
3. (c) Security — Art. 32 — appropriate technical and organisational measures named (not "industry-standard" alone).
4. (d) Sub-processors — prior authorisation (general or specific), notice of changes + objection right, and flow-down of equivalent Art. 28 terms.
5. (e) Data-subject-rights assistance — processor assists the controller in responding to DSR requests.
6. (f) Breach + DPIA assistance — Art. 33/34/35/36 — breach-notification assistance with a deadline, plus assistance with DPIAs and prior consultation.
7. (g) Deletion / return — at end of provision, delete or return all personal data + copies, at the controller's choice.
8. (h) Audit / inspection — make available the information needed to demonstrate compliance + allow and contribute to audits/inspections.
9. International transfer — Chapter V — any transfer outside the EEA has a valid mechanism (adequacy / SCCs with module + version / BCR) and, where required, supplementary measures. Schrems-II transfer-impact assessment is an open question, not a checkbox.

The nine are the floor; flag anything beyond them that materially shifts risk (liability cap, indemnity, deletion-vs-legal-hold conflict).

Step 3: Frame the gaps and the open questions

1. Produce the GREEN/YELLOW/RED frame, one line per Art. 28(3) item + transfers.
2. For every YELLOW/RED, write the open question an attorney must resolve — not a redline. ("(d) names no objection window — is [configure] acceptable, or must a specific window be negotiated?")
3. Surface any [configure] placeholder that blocked a GREEN/YELLOW/RED call.

Step 4: Emit the artifacts

Produce dpa-gap-frame.md and open-questions.md. Each carries the Jurisdiction: tag and the attorney-review line. This skill does not opine; it prepares the attorney's review.

Related Skills

WHEN to use this

• Reviewing a DPA against the GDPR Art. 28 surface, as controller or processor.
• Producing a gap frame + attorney open-questions before counsel review.

WHEN NOT to use this

• General contract clause redlines (liability, IP, term, termination) — route to contract-review.
• Which regime applies / regime delta read — route to privacy-review.
• Data classification, retention windows, transfer-mechanism + supplementary-measures operational shape — route to data-handling-judgment.
• A binding legal conclusion — route to a licensed attorney; this skill never issues one.

When the agent should load this

• "Kannst Du diese AVV / DPA gegen Art. 28 prüfen?"
• "Ein Kunde hat seinen Auftragsverarbeitungsvertrag geschickt — wo sind die Lücken?"

Output

1. dpa-gap-frame.md — Jurisdiction: tag; role (controller/processor); one GREEN/YELLOW/RED line per Art. 28(3)(a)–(h) + Chapter V transfers; the attorney-review line.
2. open-questions.md — Jurisdiction: tag; one attorney-resolvable question per YELLOW/RED, plus every [configure] placeholder that blocked a call; the attorney-review line.

Gotcha

• "Industry-standard security" satisfies neither Art. 28(3)(c) nor Art. 32 — the TOMs must be named; an unnamed measures clause is YELLOW at best, often RED.
• Sub-processor flow-down is the silent RED: the agreement names sub-processors but never binds them to equivalent Art. 28 terms, so the chain leaks obligations.
• The role fork is load-bearing — a processor-side review that reads the controller-side rights as if they were yours mis-frames every deliverability gap.
• "Delete OR return" at the controller's choice is the requirement; a clause that hard-codes deletion (ignoring legal-hold) or hard-codes return is a gap, not a convenience.
• A non-EU governing-law clause does not end the question — GDPR can still bite under Art. 3; refuse the gap review but hand the Art. 3 question to the attorney, never silently drop it.

Do NOT

• Do NOT ship default values for notice windows, audit cadence, liability caps, or breach deadlines; read legal-practice-profile or emit [configure].
• Do NOT issue a final legal call, a clearance, or a "this DPA is fine" — GREEN is a triage signal, not a sign-off. Cite legal-safety-floor.
• Do NOT review a DPA outside EU/DE scope as if it were in scope; refuse to gap-review and route to local counsel.
• Do NOT drop the Jurisdiction: tag or the attorney-review line from any output.

Runnable example

Processor-side review of a customer's DPA, governed by German law.

• Step 0 — Jurisdiction: DE. In scope. legal-practice-profile not configured → notice window, audit cadence, breach deadline are [configure].
• Step 1 — Role = processor (we host the customer's SaaS data). Frame reads deliverability, not rights.
• Step 2 — Art. 28(3) walk:
  • (a) documented instructions — GREEN.
  • (b) confidentiality — GREEN.
  • (c) security / Art. 32 — YELLOW ("appropriate measures per industry standard"; no TOMs annex named).
  • (d) sub-processors — RED (general authorisation granted, but no flow-down clause binding our sub-processors to equivalent terms, and objection window left blank = [configure]).
  • (e) DSR assistance — GREEN.
  • (f) breach assistance / Art. 33 — YELLOW (assistance promised, deadline blank = [configure]; can we meet the controller's own 72h clock?).
  • (g) deletion / return — YELLOW (hard-codes deletion; no return option, no legal-hold carve-out).
  • (h) audit — RED for us as processor (on-site audit "at any time, without notice" — not sustainable; cadence = [configure]).
  • Chapter V transfers — RED (our logging sub-processor is US-based; no SCC module/version named; Schrems-II TIA = open question).
• Step 3 — open questions, e.g.: "(d) — add a flow-down clause and a [configure] objection window?"; "(h) — negotiate audit to [configure] cadence with notice?"; "Chapter V — which SCC module/version covers the US logging sub-processor, and is a TIA required?"
• Step 4 — emit dpa-gap-frame.md + open-questions.md, both tagged Jurisdiction: DE and carrying:

⚠️ Attorney review required on material use. This is a draft for a licensed attorney, not legal advice and not a legal conclusion.