General principle for transfers
(6) Rapid technological developments and globalisation have brought new challenges for the protection of personal data. The scale of the collection and sharing of personal data has increased significantly. Technology allows both private companies and public authorities to make use of personal data on an unprecedented scale in order to pursue their activities. Natural persons increasingly make personal information available publicly and globally. Technology has transformed both the economy and social life, and should further facilitate the free flow of personal data within the Union and the transfer to third countries and international organisations, while ensuring a high level of the protection of personal data.
Article 44 is intended to state the general principle governing data transfers to non-EU third countries or international organizations. These transfers can only be effected if the controllers and the processors falling under the scope of the Regulation comply with the rules provided in Chapter V.
The provision gives however a new extension to the rule: transfers of personal data to a third country or to an international organization operated as part of planned or ongoing processing are covered, but also the future processing by the recipient third country to another country or another organization. They must also comply with Chapter V of the Regulation. In other words, by this provision, the Regulation sets up a sort of data protection-specific “right to pursue”: the data transferred outside the Union remain subject to the law of the Union not only for their transfer, but also for any processing and subsequent transfer.
The concept of international organization, defined in article 4, 26) of the Regulation is an organization and its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries.
This provision has been reintroduced by the final version of the Regulation, after having been removed from the second proposed version. The goal, as referred to in the provision is that the level of protection of individuals guaranteed by the Regulations is not lowered.
The Directive included no similar provision.
The extension of the territorial scope to processing carried out outside the territory of the Union, by recipient controllers and processors established outside the EU has both political and legal implications.
Politically, the provision allows the European authorities to intervene and detect violations of the Regulation outside the EU on the grounds of a new legitimacy included in the Regulation. It can more easily use the argument of the data protection in different files or negotiations in order to obtain an advantage.
Legally, it goes without saying that the provision may be felt by third countries as an attack on their sovereignty because it imposes a new rule on their territory and a limitation of the freedom of processing. The powers of control and enforcement of the EU authorities and the Member States, of course, cannot be exercised outside the territory of the EU.
The measure must be taken of the difference with other rules allowing the application of the Regulation to controllers established outside the territory of the EU (see Article 3). It is an indirect submission since only the controllers and the processors who are subject to the other provisions of the Regulation pursuant to Article 3, must comply with Article 44 and accordingly, Chapter V. There is no recipient of the transferred data. Or any person concerned by the data which would be at the origin of the transfer either.
C-311/18 (16 July 2020)
1. Article 2(1) and (2) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as meaning that that regulation applies to the transfer of personal data for commercial purposes by an economic operator established in a Member State to another economic operator established in a third country, irrespective of whether, at the time of that transfer or thereafter, that data is liable to be processed by the authorities of the third country in question for the purposes of public security, defence and State security.
2. Article 46(1) and Article 46(2)(c) of Regulation 2016/679 must be interpreted as meaning that the appropriate safeguards, enforceable rights and effective legal remedies required by those provisions must ensure that data subjects whose personal data are transferred to a third country pursuant to standard data protection clauses are afforded a level of protection essentially equivalent to that guaranteed within the European Union by that regulation, read in the light of the Charter of Fundamental Rights of the European Union. To that end, the assessment of the level of protection afforded in the context of such a transfer must, in particular, take into consideration both the contractual clauses agreed between the controller or processor established in the European Union and the recipient of the transfer established in the third country concerned and, as regards any access by the public authorities of that third country to the personal data transferred, the relevant aspects of the legal system of that third country, in particular those set out, in a non-exhaustive manner, in Article 45(2) of that regulation.
3. Article 58(2)(f) and (j) of Regulation 2016/679 must be interpreted as meaning that, unless there is a valid European Commission adequacy decision, the competent supervisory authority is required to suspend or prohibit a transfer of data to a third country pursuant to standard data protection clauses adopted by the Commission, if, in the view of that supervisory authority and in the light of all the circumstances of that transfer, those clauses are not or cannot be complied with in that third country and the protection of the data transferred that is required by EU law, in particular by Articles 45 and 46 of that regulation and by the Charter of Fundamental Rights, cannot be ensured by other means, where the controller or a processor has not itself suspended or put an end to the transfer.
4. Examination of Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EU of the European Parliament and of the Council, as amended by Commission Implementing Decision (EU) 2016/2297 of 16 December 2016 in the light of Articles 7, 8 and 47 of the Charter of Fundamental Rights has disclosed nothing to affect the validity of that decision.
5. Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-US Privacy Shield is invalid.
Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country or to an international organisation shall take place only if, subject to the other provisions of this Regulation, the conditions laid down in this Chapter are complied with by the controller and processor, including for onward transfers of personal data from the third country or an international organisation to another third country or to another international organisation. All provisions in this Chapter shall be applied in order to ensure that the level of protection of natural persons guaranteed by this Regulation is not undermined.
1st proposal close
Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country or to an international organisation may only take place if, subject to the other provisions of this Regulation, the conditions laid down in this Chapter are complied with by the controller and processor, including for onward transfers of personal data from the third country or an international organisation to another third country or to another international organisation.
2nd proposal close
No specific provision
No specific provision
Art. 76 WBP
1. Persoonsgegevens die aan een verwerking worden onderworpen of die bestemd zijn om na hun doorgifte te worden verwerkt, worden slechts naar een land buiten de Europese Unie doorgegeven indien, onverminderd de naleving van de wet, dat land een passend beschermingsniveau waarborgt.
2. In afwijking van het eerste lid kunnen persoonsgegevens die aan een verwerking worden onderworpen of die zijn bestemd om na hun doorgifte te worden verwerkt naar een land buiten de Europese Unie worden doorgegeven, indien dat land partij is bij de op 2 mei 1992 te Oporto totstandgekomen Overeenkomst betreffende de Europese Economische Ruimte (Trb. 1992, 132), tenzij uit een besluit van de Commissie van de Europese Gemeenschappen of de Raad van de Europese Unie voortvloeit dat deze doorgifte is beperkt of verboden.
3. Het passend karakter van het beschermingsniveau wordt beoordeeld gelet op de omstandigheden die op de doorgifte van gegevens of op een categorie gegevensdoorgiften van invloed zijn. In het bijzonder wordt rekening gehouden met de aard van de gegevens, met het doeleinde of de doeleinden en met de duur van de voorgenomen verwerking of verwerkingen, het land van herkomst en het land van eindbestemming, de algemene en sectoriële rechtsregels die in het betrokken derde land gelden, alsmede de regels van het beroepsleven en de veiligheidsmaatregelen die in die landen worden nageleefd.
1. Personal data which are undergoing processing or which are intended for processing after transfer may be transferred to a country outside the European Union only if, without prejudice to compliance with the law, that country ensures an adequate level of protection.
2. By way of derogation from subsection 1, the transfer of personal data which are undergoing processing or are intended for processing after transfer to a country outside the European Union may take place if that country is a party to the Agreement on the European Economic Area signed in Oporto on 2 May 1992 (Treaty Series 1992, 132), unless it follows from a decision of the Commission of the European Communities or the Council of the European Union that such transfer is restricted or prohibited.
3. The adequacy of the level of protection will be assessed in the light of all the circumstances surrounding a data transfer operation or set of data transfer operations. Particular consideration will be given to the nature of the data, the purpose(s) and duration of the proposed processing operation or operations, the country of origin and country of final destination, the rules of law, both general and sectoral, in force in the third country in question, and the professional rules and security measures which are complied with in that country.