Article 46
Transfers subject to appropriate safeguards
(59) Whereas particular measures may be taken to compensate for the lack of protection in a third country in cases where the controller offers appropriate safeguards; whereas, moreover, provision must be made for procedures for negotiations between the Community and such third countries;
Regulation
Art. 46 1. In the absence of a decision pursuant to Article 45(3), a controller or processor may transfer personal data to a third country or an international organisation only if the controller or processor has provided appropriate safeguards, and on condition that enforceable data subject rights and effective legal remedies for data subjects are available. 2. The appropriate safeguards referred to in paragraph 1 may be provided for, without requiring any specific authorisation from a supervisory authority, by: a) a legally binding and enforceable instrument between public authorities or bodies; b) binding corporate rules in accordance with Article 47; c) standard data protection clauses adopted by the Commission in accordance with the examination procedure referred to in Article 93(2); d) standard data protection clauses adopted by a supervisory authority and approved by the Commission pursuant to the examination procedure referred to in Article 93(2); e) an approved code of conduct pursuant to Article 40 together with binding and enforceable commitments of the controller or processor in the third country to apply the appropriate safeguards, including as regards data subjects' rights; or f) an approved certification mechanism pursuant to Article 42 together with binding and enforceable commitments of the controller or processor in the third country to apply the appropriate safeguards, including as regards data subjects' rights. 3. Subject to the authorisation from the competent supervisory authority, the appropriate safeguards referred to in paragraph 1 may also be provided for, in particular, by: a) contractual clauses between the controller or processor and the controller, processor or the recipient of the personal data in the third country or international organisation; or b) provisions to be inserted into administrative arrangements between public authorities or bodies which include enforceable and effective data subject rights. 4. The supervisory authority shall apply the consistency mechanism referred to in Article 63 in the cases referred to in paragraph 3 of this Article. 5. Authorisations by a Member State or supervisory authority on the basis of Article 26(2) of Directive 95/46/EC shall remain valid until amended, replaced or repealed, if necessary, by that supervisory authority. Decisions adopted by the Commission on the basis of Article 26(4) of Directive 95/46/EC shall remain in force until amended, replaced or repealed, if necessary, by a Commission Decision adopted in accordance with paragraph 2 of this Article. |
Directive
Art. 26 2. Without prejudice to paragraph 1, a Member State may authorize a transfer or a set of transfers of personal data to a third country which does not ensure an adequate level of protection within the meaning of Article 25 (2), where the controller adduces adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals and as regards the exercise of the corresponding rights; such safeguards may in particular result from appropriate contractual clauses. 3. The Member State shall inform the Commission and the other Member States of the authorizations it grants pursuant to paragraph 2. If a Member State or the Commission objects on justified grounds involving the protection of the privacy and fundamental rights and freedoms of individuals, the Commission shall take appropriate measures in accordance with the procedure laid down in Article 31 (2). Member States shall take the necessary measures to comply with the Commission's decision. 4. Where the Commission decides, in accordance with the procedure referred to in Article 31 (2), that certain standard contractual clauses offer sufficient safeguards as required by paragraph 2, Member States shall take the necessary measures to comply with the Commission's decision. |
Denmark
27. – (1) Transfer of data to a third country may take place only if the third country in question ensures an adequate level of protection, cf. however subsection (3). (2) The adequacy of the level of protection afforded by a third country shall be assessed in the light of all the circumstances surrounding a data transfer operation, in particular the nature of the data, the purpose and duration of the processing operation, the country of origin and country of final destination, the rules of law in force in the third country in question and the professional rules and security measures which are complied with in that country. (3) In addition to the cases mentioned in subsection (1), transfer of data to a third country may take place if:
(4) Outside the scope of the transfers referred to in subsection (3), the Data Protection Agency may authorize a transfer of personal data to a third country which does not fulfil the provisions laid down in subsection (1), where the controller adduces adequate safeguards with respect to the protection of the rights of the data subject. Specific conditions may be laid down for the transfer. The Data Protection Agency shall inform the European Commission and the other Member States of the authorizations granted pursuant to this provision. (5) The transfer of personal data to third countries may be carried out without authorization under the first clause of subsection (4), on the basis of contracts in accordance with the standard contractual clauses approved by the European Commission. (6) The rules laid down in this Act shall otherwise apply to transfers of personal data to third countries in accordance with subsections (1) and (3) to (5). |