Article 44
General principle for transfers

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(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.

The GDPR

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

The Directive included no similar provision.

Potential issues

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.

Regulation
1e 2e

Art. 44

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

Art. 40

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

Directive close

No specific provision

Article 33.- General rule.- Organic Law 15/1999 on the Protection of Personal Data.-

1. There may be no temporary or permanent transfers of personal data which have been processed or which were collected for the purpose of such processing to countries which do not provide a level of protection comparable to that provided by this Law, except where, in addition to complying with this Law, prior authorisation is obtained from the Director of the Data Protection Agency, who may grant it only if adequate guarantees are obtained.

2. The adequacy of the level of protection afforded by the country of destination shall be assessed by the Data Protection Agency in the light of all the circumstances surrounding the data transfer or category of data transfer. Particular consideration shall be given to the nature of the data, the purpose 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, the content of the reports by the Commission of the European Union, and the professional rules and security measures in force in those countries.

 

Article 67.- Adequate level of protection resolved by the Spanish Data Protection Agency. - Royal Decree 1720/2007 Implementing Organic Law 15/1999.-

1. Authorisation of the Director of the Spanish Data Protection Agency shall not be required for an international transfer of data when the rules applicable to the Country where the importer is located offer such adequate level of protection in the opinion of the Director of the Spanish Data Protection Agency.

The adequate nature of the level of protection offered by the country receiving the data shall be assessed bearing in mind all the circumstances of the transfer or category of the data transfer.

In particular, the nature of the data, the purpose and duration of the processing or processes planned, the country of origin and the country of final destination, the general or sectoral rules of law valid in the third country in question, the content of the reports of the European Commission, as well as the professional rules and security measures in force in such countries shall all be taken into account.

The decisions of the Director of the Spanish Data Protection Agency resolving that a specific country provides an adequate level of protection of data shall be published in the Official Spanish Gazette.

2. The Director of the Spanish Data Protection Agency shall resolve the publication of the list of countries where the level of protection has been deemed comparable pursuant to the provisions of the previous subsection.

This list shall be published and updated by computerised or telematic means.

 

Article 68.- Adequate level of protection declared by decision of the European Comission.-  Royal Decree 1720/2007 Implementing Organic Law 15/1999.-

Authorisation of the Director of the Spanish Data Protection Agency shall not be required for an international transfer of data where the importer is a person or entity, public or private, located in the territory of a Country where the European Commission has declared the existence of an adequate level of protection.

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