Chapter 13: Cross-Border Data Transfers – Unlocking the EU General Data Protection Regulation | White & Case LLP International Law Firm, Global Law Practice
EU General Data Protection Regulation (GDPR): EU's new data protection law

Chapter 13: Cross-Border Data Transfers – Unlocking the EU General Data Protection Regulation

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Overview

Why does this topic matter to organisations?

In today's world, it is increasingly important to be able to move data freely to wherever those data are needed. However, the transfer of personal data to recipients outside the EEA is generally prohibited unless:

  • the jurisdiction in which the recipient is located is deemed to provide an adequate level of data protection;
  • the data exporter puts in place appropriate safeguards; or
  • a derogation or exemption applies.

Understanding the application of lawful data transfer mechanisms is essential for all organisations that wish to transfer personal data to recipients located outside the EEA (including processors, such as cloud service providers).

What types of organisations are most affected?

This issue affects all organisations that engage in Cross-Border Data Transfers. For example, organisations using online IT services, cloudbased services, remote access services or global HR databases—among others—will often need to implement lawful data transfer mechanisms.

What should organisations do to prepare?

In order to prepare for the requirements of the GDPR, organisations should:

  • review their existing and planned business operations;
  • identify all circumstances in which personal data are transferred to recipients located outside the EEA; and
  • ensure that, for each such transfer, the organisation has in place a data transfer mechanism that complies with the requirements of the GDPR.

To the extent that personal data are transferred from the EU to the US, organisations should keep a watchful eye on the progress of the EU-US Privacy Shield.

If an organisation identifies any data transfers for which it lacks a lawful data transfer mechanism, the organisation should review the available options and implement the most suitable mechanism promptly.

 

Icons are used below to clarify the impact of each GDPR change. These GDPR impact icons are explained here.

   
   

Detailed analysis

Issue

The Directive

The GDPR

Impact

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General prohibition on transfers

Cross-Border Data Transfers are prohibited, unless certain conditions are met.

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Rec.56-57; Art.25, Art.26(1)-(2)

Cross-Border Data Transfers are, without prejudice to compliance with national law, prohibited, unless the transfer is made to an Adequate Jurisdiction (see below) or the data exporter has implemented a lawful data transfer mechanism (or an exemption or derogation applies).

does not materially change

Rec.101-116; Art.44, 45

Cross-Border Data Transfers may only take place if the transfer is made to an Adequate Jurisdiction (see below) or the data exporter has implemented a lawful data transfer mechanism (or an exemption or derogation applies).

neutral

The GDPR and the Directive have essentially similar general restrictions on Cross-Border Data Transfers.

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Commission Adequacy Decisions

Cross-Border Data Transfers to a recipient in a third country may take place, without a need to obtain any further authorisation, if the Commission has decided that such third country ensures an adequate level of data protection (an "Adequate Jurisdiction"). The basis for this principle is that such jurisdictions provide sufficient protection for the rights and freedoms of data subjects without the need for further safeguards.

The current list of Adequate Jurisdictions is: Andorra, Argentina, Canada (for organisations that are subject to Canada's PIPEDA law), Switzerland, the Faeroe Islands, Guernsey, Israel, Isle of Man, Jersey, New Zealand, and Uruguay. Following the decision in Schrems, the US-EU Safe Harbor is no longer deemed adequate. It has effectively been replaced by the EU-US Privacy Shield.

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Rec.56-57; Art.25(1)-(6), 31(2)

Cross-Border Data Transfers to a recipient in a third country may take place if the third country ensures an adequate level of data protection. Adequacy shall be assessed in the light of all circumstances surrounding the transfer, in particular:

  • the nature of personal data;
  • the purpose and duration of processing;
  • country of origin and country of final destination;
  • the rule of law; and
  • professional rules and security measures.

The Commission may determine third countries to be Adequate Jurisdictions.

materially changes

Rec.103-107; Art.44, 45

Cross-Border Data Transfers to a recipient in a third country may take place if the third country receives an Adequacy Decision from the Commission. Factors that may affect an Adequacy Decision include, inter alia:

  • the rule of law and legal protections for human rights and fundamental freedoms;
  • access to transferred data by public authorities;
  • existence and effective functioning of DPAs; and
  • international commitments and other obligations in relation to the protection of personal data.

The Commission may declare third countries (or a territory, a specified sector, or an international organisation) to be Adequate Jurisdictions.

positive

Existing Adequacy Decisions adopted by the Commission on the basis of the Directive remain in force until amended, replaced or repealed in accordance with the GDPR.

 

unknown at this stage

The catalogue of adequacy requirements is substantially broader and more detailed under the GDPR. It is unclear whether further countries will qualify, and whether existing countries will maintain their status, as Adequate Jurisdictions.

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Review of Adequacy Decisions

As illustrated by the Schrems decision, it is always possible that conditions in an Adequate Jurisdiction may change, and that jurisdiction may no longer provide adequate protection. Therefore, the Commission's Adequacy Decisions may need to be reviewed from time to time.

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N/A

The Directive does not directly address the need to review Adequacy Decisions. The CJEU in Schrems determined that DPAs can examine claims that an Adequacy Decision provides insufficient protection for transferred personal data.

materially changes

Rec.106-107; Art.45(3)-(5), 93(2)-(3)

Adequacy Decisions are subject to a periodic review, at least every four years, taking into account all relevant developments. The Commission can repeal, amend or suspend Adequacy Decisions for jurisdictions no longer ensuring an adequate level of data protection (without retro-active effect).

negative

Adequacy Decisions made under the GDPR remain valid for a maximum of 4 years and may be amended, suspended or repealed. This may affect the ability of organisations to rely on Adequacy Decisions in the long-term.

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Agreements between public authorities

Public sector Cross-Border Data Transfers may take place on the basis of agreements between a public authority in the EU and a public authority in a third country, without requiring a specific authorisation from a DPA.

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N/A

The Directive does not specifically provide for binding agreements between public authorities or bodies as a lawful basis for Cross-Border Data Transfers.

materially changes

Rec.108; Art.46(2)(a), (3)(b)

Cross-Border Data Transfers between public authorities may take place on the basis of agreements between public authorities, which do not require any specific authorisation from a DPA. The public authorities must ensure compliance with GDPR requirements.

positive

Private organisations that are dealing with international regulatory investigations may benefit from the ability of national public authorities to lawfully transfer data between themselves on this basis.

 

unknown at this stage

It is unclear how this instrument will develop in practice.

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Binding Corporate Rules

Cross-Border Data Transfer within a corporate group may take place on the basis of Binding Corporate Rules ("BCRs"). The BCRs require approval from DPAs, but once such approval is obtained, individual transfers made under the BCRs do not require further approval.

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Art.26(2)

The Directive does not specifically address BCRs. However, it permits Member States to authorise data transfers where the controller has adduced adequate protections for the transferred data. BCRs are one such means. Much of the existing guidance on the requirements for BCRs comes from WP29 working papers (see, in particular, working papers 74, 107, 108, 133, 153, 154, 155, 195, 195a, 204 and 212) and from guidance issued by DPAs in certain Member States.

materially changes

Rec.108, 110; Art.4(20) 46(2)(b), 47

The GDPR directly addresses the concept of BCRs. The competent DPA will approve BCRs as an appropriate mechanism for Cross-Border Data Transfers within a corporate group (including to members of that group that are established in third countries). If the BCRs meet the requirements set out in the GDPR, they will be approved, and no further DPA approval will be required for transfers of personal data made under the BCRs.

positive

Unlike the Directive, the GDPR explicitly recognises BCRs and provides clear provisions on requirements and procedures for BCRs. This is likely to make it easier for organisations to obtain DPA approval for, and implement, BCRs.

 

unknown at this stage

The requirements for BCRs under the GDPR are partially in line with the recommendations previously issued by the WP29, but there are some material differences. It is unclear how these differences will affect the drafting and implementation of BCRs in practice.

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Content of BCRs

Although the language of BCRs can be drafted by the parties, that language must cover certain specified topics, and satisfy the requirements of EU data protection law, before the BCRs can be approved by DPAs.

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N/A

The Directive does not specify requirements for the content of BCRs. The WP29 working papers noted above set out guidance on the content of BCRs. Certain general principles (e.g., the requirement to make the BCRs binding upon the members of the relevant corporate group) are applied uniformly in all Member States. However, a number of other requirements are interpreted inconsistently from one DPA to another.

materially changes

Rec.108, 110; Art.47(1)-(3)

BCRs must include a mechanism to make the BCRs legally binding on group companies. Among other things, the BCRs must:

  • specify the purposes of the transfer and affected categories of data;
  • reflect the requirements of the GDPR;
  • confirm that the EU-based data exporters accept liability on behalf of the entire group;
  • explain complaint procedures; and
  • provide mechanisms for ensuring compliance (e.g., audits).

positive

Unlike the Directive, the GDPR provides specific guidance on the list of criteria that BCRs must cover. By complying with this list, businesses can significantly increase the likelihood of obtaining DPA approval for their BCRs.

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Approval of BCRs

Unlike Model Clauses (which are discussed below), the content of BCRs can be drafted to suit the needs and circumstances of the organisation (provided that they also satisfy the requirements of EU data protection law). Consequently (also unlike Model Clauses) BCRs are not deemed to be pre-approved. Instead, BCRs always require prior approval from DPAs.

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N/A

The Directive does not discuss the requirements for approval of BCRs. A mutual recognition procedure applies in 21 Member States, and provides that the applicant must appoint a lead DPA to review the application for BCRs. Once the lead DPA approves the BCRs, that approval is recognised by those 21 Member States. However, for the remaining seven Member States, separate applications will be required.

materially changes

Rec.108, 110; Art.47(1), 57(1)(s)

The competent DPA must approve BCRs that fulfil the criteria set out in the GDPR. Where the BCRs are intended to cover data transfers from multiple Member States, the Consistency Mechanism applies (see Chapter 15).

positive

The fact that approval must be given by the competent DPA for compliant BCRs is likely to make the adoption of BCRs easier and should significantly decrease the inconsistencies in the interpretation and implementation of BCRs from one DPA to another.

 

positive

Existing approvals of BCRs created under the Directive remain valid until amended, replaced or repealed in accordance with the GDPR.

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Model Clauses

Cross-Border Data Transfers may take place on the basis of standard data protection clauses approved by the Commission ('Model Clauses').

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Rec.59-60; Art.26(2)-(4), 31(2)

Member States may authorise a Cross-Border Data Transfer where the controller adduces adequate safeguards in the form of Model Clauses. Under the Directive, several Member States require DPA notification or authorisation (or both) before Model Clauses can be used.

materially changes

Rec.81, 108-109; Art.28(6)-(8), 46(2)(c), 57(1)(j), (r), 93(2)

Cross-Border Data Transfers are permitted if the controller or processor adduces appropriate safeguards in the form of Model Clauses. These do not require any further authorisation from a DPA. The Commission may create new types of Model Clauses.

positive

DPA authorisation of transfers made under the Model Clauses is not required under the GDPR.

 

positive

Existing Model Clauses implemented under the Directive remain valid until amended, replaced or repealed in accordance with the GDPR.

 

unknown at this stage

The Commission may update or replace the existing Model Clauses. The impact of such updates remains to be seen.

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DPA Clauses

Cross-Border Data Transfers may take place on the basis of standard data protection clauses adopted by one or more DPAs, in accordance with the GDPR ("DPA Clauses").

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N/A

The Directive does not provide for DPA Clauses as adequate safeguard for Cross-Border Data Transfers.

materially changes

Rec.108-109; Art.46(2)(d), 64(1)(d), 57(1)(j), (r), 93(2)

A Cross-Border Data Transfer may take place on the basis of DPA Clauses, which offer a national alternative to the Commission-approved Model Clauses. Transfers made on the basis of DPA Clauses do not require further DPA approval. DPA Clauses may be included in a wider contract (e.g., from one processor to another), provided the original wording of the authorised DPA Clauses is not contradicted (directly or indirectly).

positive

The GDPR introduces DPA Clauses, which allow DPAs to develop and offer DPA Clauses.

 

unknown at this stage

Model Clauses are a well-known and proven concept; DPA Clauses might develop in a similar direction. However, it is unclear how this will work in practice. The Commission needs to approve DPA Clauses which, in theory, will prevent organisations from forum-shopping.

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Codes of Conduct

A Cross-Border Data Transfer may take place on the basis of approved Codes of Conduct. Further commentary on Codes of Conduct is provided on Chapter 12.

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Rec.61; Art.27

The Directive encourages the drawing up of Codes of Conduct. However, it does not specifically permit Cross-Border Data Transfers to be made on the basis of a Code of Conduct.

materially changes

Rec.108; Art.40, 41, 46(2)(e)

A Cross-Border Data Transfer may take place on the basis of an approved Code of Conduct, together with binding and enforceable commitments to provide appropriate safeguards. Transfers made on this basis do not require DPA approval (although, as set out in Chapter 12, the Code of Conduct itself requires DPA approval).

positive

The GDPR introduces the possibility of Cross-Border Data Transfers made in reliance on approved Codes of Conduct. This permits organisations greater flexibility in selecting the data transfer mechanisms that best suit their needs.

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Certification

A Cross-Border Data Transfer may take place on the basis of certifications. Further commentary on certifications is provided on Chapter 12.

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N/A

The Directive does not provide for certifications as a mechanism for Cross-Border Data Transfers.

materially changes

Rec.108; Art.42, 43, 46(2)(f)

A Cross-Border Data Transfer may take place on the basis of certifications together with binding and enforceable commitments of the data importer to apply the certification to the transferred data. Transfers made on this basis do not require DPA approval (although, as set out in Chapter 12, the certification scheme itself requires DPA approval).

positive

The GDPR introduces certifications as a new lawful mechanism for Cross-Border Data Transfers. This permits organisations greater flexibility in selecting the data transfer mechanisms that best suit their needs.

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Ad hoc clauses

A Cross-Border Data Transfer may take place on the basis of contracts negotiated between the data exporter and the data importer ("ad hoc clauses"), subject to approval from the competent DPA.

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Rec.59-60; Art.26(2)-(3), 31(2)

A Cross-Border Data Transfer may take place on the basis of ad hoc clauses between the data exporter and data importer. These clauses must conform to the requirements of the national laws of the relevant Member State, and must be approved by the relevant DPA, before transfers can begin.

materially changes

Rec.108; Art.46(3)(a), (4), 63

A Cross-Border Data Transfer may take place on the basis of ad hoc clauses. These clauses must conform to the requirements of the GDPR, and must be approved by the relevant DPA subject to the Consistency Mechanism, before transfers can begin.

neutral

The Directive and the GDPR both permit Cross‑Border Data Transfers made on the basis of ad hoc clauses.

 

positive

Existing DPA approvals of ad hoc clauses remain valid until amended, replaced or repealed in accordance with the GDPR.

 

positive

DPAs are obliged to apply the Consistency Mechanism (see Chapter 15) which will, in theory, ensure a consistent regulatory approach across all Member States.

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Administrative arrangements

A Cross-Border Data Transfer may take place on the basis of administrative arrangements made by the data exporter, subject to the authorisation from the competent DPA.

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N/A

The Directive does not provide for administrative arrangements as a lawful basis for Cross-Border Data Transfers.

materially changes

Rec.108; Art.46(3)(b), (4), 63

Cross-Border Data Transfers may take place on the basis of administrative arrangements between public authorities (e.g., a Memorandum of Understanding), which include adequate protection for the rights of data subjects. Transfers made on this basis require DPA approval.

positive

Private organisations that are dealing with regulatory investigations may benefit from the ability of national public authorities to lawfully transfer data between themselves on this basis.

 

unknown at this stage

It is unclear how this transfer mechanism will develop in practice.

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Third country judgments and decisions

Third country court judgments, or administrative authority decisions, are recognised as a lawful basis for a Cross-Border Data Transfer only if the transfer is subject to appropriate international agreements.

blank

N/A

The Directive does not directly mention third country court judgments or administrative authority decisions as a lawful data transfer mechanism.

materially changes

Rec.115; Art.48

A judgment from a third country, requiring a Cross-Border Data Transfer, only provides a lawful basis for such a transfer if the transfer is based on an appropriate international agreement, such as a Mutual Legal Assistance Treaty. However, this is without prejudice to other grounds for a transfer.

negative

This requirement may result in organisations being unable to comply with orders from courts in third countries (e.g., the US) without the existence of an appropriate international agreement. If no such agreement exists, the transfer may nevertheless be lawful if the conditions of Art.45, 46, 47 or 48 are met. However, it should be noted that the UK has effectively opted out of Art.48 of the GDPR, on the basis of Protocol 21 to the Treaty on European Union and the Treaty on the Functioning of the European.

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Consent

A Cross-Border Data Transfer may be made on the basis of the consent of the data subject. Further commentary on consent is provided on Chapter 8.

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Rec.58; Art.26(1)(a)

A Cross-Border Data Transfer may be made on the basis of the data subject's unambiguous consent. Any such transfers may only be carried out in full compliance with the applicable national laws that implement the Directive.

materially changes

Rec.111; Art.49(1)(a), (3)

A Cross-Border Data Transfer may be made on the basis that the data subject, having been informed of the possible risks of such transfer, explicitly consents.

neutral

The shift from "unambiguous" consent to "explicit" consent is unlikely to make very much practical difference for most organisations.

 

negative

The obligation to prove that data subjects have been informed of the possible risks associated with the transfer may impose a material administrative burden on organisations that rely on consent as a lawful basis for Cross-Border Data Transfers.

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Contracts between a data subject and a controller

A Cross-Border Data Transfer may be made on the basis that it is necessary for the purposes of performing or implementing a contract between the data subject and the controller.

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Rec.58; Art.26(1)(b)

A Cross-Border Data Transfer may take place if the transfer is necessary for:

  • the performance of a contract between the data subject and the controller; or
  • the implementation of pre‑contractual measures taken in response to the data subject's request.

does not materially change

Rec.111 Art.49(1)(b), (3)

A Cross-Border Data Transfer may take place if the transfer is necessary for:

  • the performance of a contract between the data subject and the controller; or
  • the implementation of pre‑contractual measures taken in response to the data subject's request.

neutral

The position under the Directive is essentially unchanged under the GDPR.

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Contracts that are in the data subject's interest

A Cross-Border Data Transfer may be made on the basis that it is necessary for the purposes of performing or concluding a contract in the interests of the data subject (e.g., a parent making a purchase on behalf of a child).

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Rec.58; Art.26(1)(c)

A Cross-Border Data Transfer may take place if the transfer is necessary for the conclusion or performance of a contract between the controller and a third party, which is in the interests of the data subject.

does not materially change

Rec.111; Art.49(1)(c), (3)

A Cross-Border Data Transfer may take place if the transfer is necessary for the conclusion or performance of a contract between the controller and a third party, where it is in the interests of the data subject.

neutral

The position under the Directive is essentially unchanged under the GDPR.

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Public interest

A Cross-Border Data Transfer may be made on the basis that the transfer is necessary for important reasons of public interest.

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Rec.58; Art.26(1)(d)

A Cross-Border Data Transfer may take place if the transfer is necessary, or legally required, on important public interest grounds.

materially changes

Rec.111-112; Art.49(1)(d), (4)

A Cross-Border Data Transfer may take place if the transfer is necessary for important reasons of public interest. Such interests must be recognised in EU law or in the law of the Member State to which the controller is subject.

neutral

The changes introduced by the GDPR make little practical difference, because interests that are not recognised by EU or Member State law are unlikely to be viewed by DPAs as a lawful basis for a Cross‑Border Data Transfer.

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Legal claims

A Cross-Border Data Transfer may be made on the basis that it is necessary for the purposes of legal proceedings, or obtaining legal advice.

blank

Rec.58; Art.26(1)(d)

A Cross-Border Data Transfer may take place if the transfer is necessary for the establishment, exercise or defence of legal claims.

does not materially change

Rec.111; Art.49(1)(e)

A Cross-Border Data Transfer may take place if the transfer is necessary for the establishment, exercise or defence of legal claims.

neutral

The position under the Directive is essentially unchanged under the GDPR.

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Data subject's vital interests

A Cross-Border Data Transfer may be made on the basis that the transfer is necessary to protect the vital interests of the data subject.

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Rec.58; Art.26(1)(e)

A Cross-Border Data Transfer may take place if the transfer is necessary in order to protect the vital interests of the data subject.

materially changes

Rec.111-112; Art.49(1)(f)

A Cross-Border Data Transfer may take place if the transfer is necessary in order to protect the vital interests of the data subject or of other persons, where the data subject is physically or legally incapable of giving consent.

positive

Extending the scope of this ground to cover third parties provides organisations with another lawful basis for Cross-Border Data Transfers, albeit in limited circumstances.

 

neutral

In reality, very few organisations will ever make use of this basis for Cross-Border Data Transfers, as this basis only justifies transfers in a "life-or-death" situation.

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Public registers

A Cross-Border Data Transfer may be made on the basis that the data to be transferred are taken from a public register.

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Rec.58; Art.26(1)(f)

A Cross-Border Data Transfer may take place if the transferred data are taken from a register which is open to the public, or to any person who can demonstrate a legitimate interest in inspecting it.

materially changes

Rec.111; Art.49(1)(g), (2)

A Cross-Border Data Transfer may take place if the transferred data are taken from a register which is open to the public or, upon request, to any person who can demonstrate a legitimate interest in inspecting it. This does not permit a transfer of the entire register.

neutral

The position under the Directive is, for the most part, unchanged under the GDPR.

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Controller's compelling legitimate interests

A Cross-Border Data Transfer may be made on the basis that the transfer is necessary for the purposes of a compelling legitimate interests of the controller. Further commentary on legitimate interests is provided in Chapter 7.

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N/A

The Directive does not allow for Cross-Border Data Transfers to be made on the basis of the controller's legitimate interests.

materially changes

Rec.113; Art.49(1), (3), (6)

A Cross-Border Data Transfer may take place if:

  • none of the other lawful bases applies;
  • the transfer is not repetitive;
  • it only concerns a limited number of data subjects;
  • the transfer is necessary for the purposes of compelling legitimate interests pursued by the controller which are not overridden by those of the data subject; and
  • the controller has adduced suitable safeguards for the transferred data.

The controller must inform the relevant DPA and the data subjects about the transfer.

positive

The GDPR introduces the possibility that organisations may be able to make Cross-Border Data Transfers on the basis of compelling legitimate interests. Even if the scope of this transfer mechanism is narrow, it provides for another option to enable Cross-Border Data Transfers.

 

unknown at this stage

It is unclear how this transfer mechanism will develop in practice.

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Certain transfer mechanisms may be limited by law

A number of lawful mechanisms for Cross-Border Data Transfers may be limited, under applicable EU or Member State law, to certain categories of data.

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N/A

The Directive does not provide for the possibility of limiting lawful data transfer mechanisms in this way.

materially changes

Rec.111; Art.49(5)

EU law or law of the Member States may, for important reasons of public interest, expressly limit Cross–Border Data Transfers relating to specific categories of personal data. Member States must notify such restrictions to the Commission.

negative

The fact that individual Member States can restrict the ability of organisations to transfer certain categories of personal data may severely hamper the business activities of some organisations, and result in inconsistent restrictions from one Member State to the next.

 

Further analysis

Commentary: GDPR Transfer Mechanisms

The GDPR maintains the existing data transfer mechanisms created under the Directive (with some minor amendments). It also creates a number of new transfer mechanisms, of which organisations should be aware. Key changes include the following:

  • Under the GDPR, several transfer mechanisms will no longer require notification to, and/or authorisation from, DPAs. This significantly reduces the administrative burden on organisations.
  • The GDPR further introduces several new transfer mechanisms, including DPA Clauses, certifications and a derogation for the purposes of legitimate interests.
  • Transfer mechanisms such as BCRs and Codes of Conduct may become more important as a result of the increased harmonisation introduced by the GDPR.

However, there remains a significant amount of uncertainty in this area, including in relation to the newly agreed EU-US Privacy Shield, which is likely to face both political and legal challenges.

Case law: Schrems vs. Data Protection commissioner

On 6 October 2014, the CJEU published its judgment in Schrems (Case C-362/14). The claimant objected to the transfer of his personal data from the EU to the US in reliance on Safe Harbor. The CJEU held that:

  • the Commission's Adequacy Decision concerning Safe Harbor was invalid, on the basis that Safe Harbor does not guarantee adequate protection for personal data that are transferred to the US; and
  • DPAs may examine whether the transfer of personal data to a third country (including Adequate Jurisdictions) complies with the requirements of the Directive and bring the matter before national courts, in order for the national courts to make a reference to the CJEU for a preliminary ruling for the purpose of examination of that decision's validity.

A challenge to the validity of Model Clauses was referred to the Irish Courts by the Irish DPA in May 2015, on similar grounds to the original challenge against the validity of Safe Harbor. It is widely anticipated that the case will be referred to the CJEU, and it remains to be seen what the outcome will be.

Commentary: The EU-US Privacy Shield

Following the decision in Schrems, the Commission and the US FTC have formally agreed the implementation of the EU-US Privacy Shield, which effectively replaces Safe Harbor. The final version of the deal features a number of amendments, mainly to address concerns raised by WP29 and the European Parliament. The most important changes include:

  • A requirement for companies to delete personal data that no longer serve the purpose for which they were collected.
  • A requirement that third party companies processing data on behalf of companies that have signed up to the Privacy Shield must guarantee the same level of protection as the Privacy Shield companies themselves.
  • Clarifications from the US government that bulk surveillance will be authorised only in exceptional circumstances, where targeted collection is not feasible, and will be accompanied by additional safeguards to minimise the volume of data collected and subsequent access to the collected data (such access to be targeted and only permitted for specific purposes).
  • Clarifications on the Ombudsperson Mechanism. In particular, the US Secretary of State will ensure that the Ombudsperson will have the means to ensure that its response to individual requests is based on all necessary information.

 

NEXT CHAPTER
Chapter 14: Data Protection Authorities

 

Unlocking the EU General Data Protection Regulation:
A practical handbook on the EU's new data protection law

Foreword

Chapter 1: Introduction

Chapter 2: Preparing for the GDPR

Chapter 3: Subject matter and scope

Chapter 4: Territorial application

Chapter 5: Key definitions

Chapter 6: Data Protection Principles

Chapter 7: Lawful basis for processing

Chapter 8: Consent

Chapter 9: Rights of data subjects

Chapter 10: Obligations of controllers

Chapter 11: Obligations of processors

Chapter 12: Impact Assessments, DPOs and Codes of Conduct

Chapter 13: Cross-Border Data Transfers

Chapter 14: Data Protection Authorities

Chapter 15: Cooperation and consistency

Chapter 16: Remedies and sanctions

Chapter 17: Issues subject to national law

Chapter 18: Relationships with other laws

Chapter 19: Transitional provisions

Chapter 20: Glossary

Our Global Data, Privacy & Cyber Security Practice

 

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