I very much doubt this for a few reasons, the first being that it would be completely out of scope for the GDPR to have any say on what happens or who should be sued in a private lawsuit. The recital itself would also be contradictory, immediately before it says that the representative 'should be subject to enforcement proceedings' it says,
>Recital 80(4), The designation of such a representative does not affect the responsibility or liability of the controller or of the processor under this Regulation.
Additionally,
>Article 27(5), The designation of a representative by the controller or processor shall be without prejudice to legal actions which could be initiated against the controller or the processor themselves.
The wording of these two alone make it clear, to me, that the responsibility or liability lies solely on the controller/processor. The term prejudice also has a very specific meaning in Civil Law, and while it may have different meanings in Common Law (UK) I'm sure the more specific Civil Law version is intended and relevant. The wording of recital 80(6) as well as (5) '[the representative should cooperate] with the competent supervisory authorities with regard to any action taken to ensure compliance with this Regulation.' also tie in with other areas of the GDPR, particularly article 31 and 58(1)(a) which essentially state that supervisory authorities have the power to order the controller/processor as well as the representative to provide information that is required for the authority to perform its tasks. I think recital 80(6) with this context is basically just confirming that representatives need to to be present when supervisory authorities undergo enforcement of legislation.
If it were such a legal headache for representatives, it is concerning that no law firm has put forward an analysis of the situation. As far as I can tell from a brief search it is only amateurs interpreting the GDPR that have come to the conclusion that representatives may be liable for fines. With DPOs, who have many more responsibilities and requirements, there was much analysis by the legal community on what those responsibilities would include and whether DPOs could share liability. The WP29 even put out guidelines for DPOs[0] stating plainly that DPOs are not responsible for non-complaince, only the controllers/processors are responsible for non-complaince. It just seems odd to me that representatives who receive almost no mention in the legislation may be responsible for non-complaince where DPOs aren't responsible.
[0] http://ec.europa.eu/newsroom/article29/item-detail.cfm?item_... [very bottom of page 24]
What about Article 27? It's unclear, and you don't have to have a shady business model in order to have no idea how you are supposed to deal with it. All it takes is that your business is not established in the Union.
This is the article that requires companies who are not in the Union but are subject to GDPR due to Article 3(2) to appoint a representative in the Union. The representative serves as a contact point that regulators and persons can communicate with instead of the company on all GDPR matters concerning the company. The representative is also required to keep a bunch of metadata about the company's data processing, according t Article 30.
According to the recital for this article, "The designated representative should be subject to enforcement proceedings in the event of non-compliance by the controller or processor".
What does that mean?
Some people claim it means that your representative in the Union will be liable for any fines you incur from EU regulators or any damages a plaintiff wins in a private lawsuit over GDPR if the regulator or plaintiff is not able to force you to pay up.
Others think it just means that if regulators or plaintiffs serve notice on the representative, that legally counts as if you were served, meaning that if you do not show up at the hearing or trial and lose by default, you cannot try to weasel out by claiming you had no notice of the hearing or trial. In other words, these people think that the representative is very similar to the "registered agent" that many jurisdictions require foreign businesses to have in order to do business in that jurisdiction.
Personally, I was leaning toward the latter, as the idea of making the representative liable seemed pretty absurd...but it has been pointed out that in earlier drafts of Article 27 and the recitals, it did in fact actually clearly do so. That language was taken out before the final draft, but was that change because they wanted to remove that aspect, or because they decided "subject to enforcement proceedings" already implied it and they were just tightening the language?
This is important because if representatives are actually liable for fines and damages, it is going to be a lot more expensive to hire people to be representatives than it will be if all they have to do is be a contact point and a repository of metadata.
For small businesses outside the Union this could be a major expense if they must have a representative, perhaps a big enough expense that it will be worthwhile to just stop doing business in the EU.
So we must ask, "Who needs a representative?". The answer, it turns out, involves still more vagueness.
Basically, you are excused from needing a representative if you meet three conditions. Two of them most small businesses easily meet as long as they are not doing high volumes of certain particularly sensitive data, and their processing does not result in a risk to "the rights and freedoms of natural persons" (more vagueness!).
The third condition is that your processing "is occasional". What is "occasional"? No one seems to know.