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.
European Union
European data protection board (EDPB)
Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR (14 February 2023)
The GDPR does not provide for a legal definition of the notion “transfer of personal data to a third country or to an international organisation”. Therefore, the EDPB provides these guidelines to clarify the scenarios to which it considers that the requirements of Chapter V should be applied and, to that end, it has identified three cumulative criteria to qualify a processing operation as a transfer:
1) A controller or a processor (“exporter”) is subject to the GDPR for the given processing.
2) The exporter discloses by transmission or otherwise makes personal data, subject to this processing, available to another controller, joint controller or processor (“importer”).
3) The importer is in a third country, irrespective of whether or not this importer is subject to the GDPR for the given processing in accordance with Article 3, or is an international organisation.
If the three criteria as identified by the EDPB are met, there is a transfer and Chapter V of the GDPR is applicable. This means that the transfer can only take place under certain conditions, such as in the context of an adequacy decision from the European Commission (Article 45) or by providing appropriate safeguards (Article 46). The provisions of Chapter V aim at ensuring the continued protection of personal data after they have been transferred to a third country or to an international organisation.
Conversely, if the three criteria are not met, there is no transfer and Chapter V of the GDPR does not apply. In this context, it is however important to recall that the controller must nevertheless comply with the other provisions of the GDPR and remains fully accountable for its processing activities, regardless of where they take place. Indeed, although a certain data transmission may not qualify as a transfer according to Chapter V, such processing can still be associated with increased risks since it takes place outside the EU, for example due to conflicting national laws or disproportionate government access in the third country. These risks need to be considered when taking measures under, inter alia, Article 5 (“Principles relating to processing of personal data”), Article 24 (“Responsibility of the controller”) and Article 32 (“Security of processing”) – in order for such processing operation to be lawful under the GDPR.
These guidelines include various examples of data flows to third countries, which are also illustrated in an Annex in order to provide further practical guidance.
Link
Frequently Asked Questions on the judgment in Case C-311/18 - Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems (23 July 2020)
This document aims at presenting answers to some frequently asked questions received by supervisory authorities (“SAs”) and will be developed and complemented along with further analysis, as the EDPB continues to examine and assess the judgment of the Court of Justice of the European Union (the “Court”).
Link
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European Union
CJEU caselaw
C-101/01 (6 November 2003) - Lindqvist
1. The act of referring, on an internet page, to various persons and identifying them by name or by other means, for instance by giving their telephone number or information regarding their working conditions and hobbies, constitutes 'the processing of personal data wholly or partly by automatic means' within the meaning of Article 3(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
2. Such processing of personal data is not covered by any of the exceptions in Article 3(2) of Directive 95/46.
3. Reference to the fact that an individual has injured her foot and is on half-time on medical grounds constitutes personal data concerning health within the meaning of Article 8(1) of Directive 95/46.
4. There is no 'transfer [of data] to a third country' within the meaning of Article 25 of Directive 95/46 where an individual in a Member State loads personal data onto an internet page which is stored on an internet site on which the page can be consulted and which is hosted by a natural or legal person who is established in that State or in another Member State, thereby making those data accessible to anyone who connects to the internet, including people in a third country.
5. The provisions of Directive 95/46 do not, in themselves, bring about a restriction which conflicts with the general principles of freedom of expression or other freedoms and rights, which are applicable within the European Union and are enshrined inter alia in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950. It is for the national authorities and courts responsible for applying the national legislation implementing Directive 95/46 to ensure a fair balance between the rights and interests in question, including the fundamental rights protected by the Community legal order.
6. Measures taken by the Member States to ensure the protection of personal data must be consistent both with the provisions of Directive 95/46 and with its objective of maintaining a balance between freedom of movement of personal data and the protection of private life. However, nothing prevents a Member State from extending the scope of the national legislation implementing the provisions of Directive 95/46 to areas not included in the scope thereof provided that no other provision of Community law precludes it.
Opinion of Advocate general
Judgment of the Court
C-311/18 (16 July 2020) - Facebook Ireland et Schrems
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.
Opinion of Advocate general
Judgment of the Court
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