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==Legal Text==
==Legal Text==
<br /><center>'''Article 44 - General principle for transfers'''</center><br />
<br /><center>'''Article 44 - General principle for transfers'''</center>


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 thisCHAPTER 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 thisCHAPTER shall be applied in order to ensure that the level of protection of natural persons guaranteed by this Regulation is not undermined.
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.


==Relevant Recitals==
==Relevant Recitals==
''You can help us fill this section!''


{{Recital/6 GDPR}}
{{Recital/101 GDPR}}
{{Recital/102 GDPR}}
==Commentary==
==Commentary==
Under Article 44, GDPR, any transfer of personal data to a third country (or international organisation) shall take place only it respects the GDPR as well as the specific conditions laid down in Chapter V. The same conditions must also be met for onward transfers to further third countries. The same provision specifies that all the provisions in Chapter V must be applied in order to ensure that the protection of individuals guaranteed by the GDPR is not compromised. <blockquote>EDPB Guidelines: on this Article, and the rest of Chapter V, please see [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-052021-interplay-between-application-article-3_en 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] </blockquote>


===Overview===
===Transfers===
Article 44 GDPR introduces Chapter V (Articles 44 to 50). It pre-empts the exhaustive list of ways in which personal data can be transferred by a data controller or processor to countries outside of the EU or to international organisations. It also outline the general rules that apply to international transfers.  
There is no definition of the notion of a personal data transfer to a third country or an international organization in the GDPR. However, the European Data Protection Board (EDPB) has recently identified three criteria which, when cumulated, indicate that there is such a transfer: (i) a controller or a processor is subject to the GDPR for a given processing operation; (ii) this controller or processor (“''exporter''”) discloses by transmission, or otherwise makes personal datasubject to this processing, available to another controller, joint controller or processor (“''importer''”); and, (iii) the importer is in a third country or is an international organisation, irrespective of whether or not this importer is subject to the GDPR regarding the given processing activity, in accordance with [[Article 3 GDPR]]. If all of the criteria (as identified by the EDPB) are met, then a “''transfer to a third country or to an international organisation''” has taken place. Thus, a transfer implies that personal data are sent or made available by a controller or processor (exporter) which, regarding the given processing, is subject to the GDPR (pursuant to [[Article 3 GDPR]]), to a different controller or processor (importer) in a third country, regardless of whether or not this importer is subject to the GDPR in respect of the given processing. As a consequence, "''the controller or processor in a'' ‘''transfer''’''” situation (according to the criteria described above) needs to comply with the conditions of Chapter V and frame the transfer by using the instruments which aim at protecting personal data after they have been transferred to a third country or an international organisation''."<ref>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’, 18 November 2018 (Version for public consultation) (available [https://edpb.europa.eu/our-work-tools/documents/public-consultations/2021/guidelines-052021-interplay-between-application_en here]).</ref>
====Onwards Transfers====
Article 44 GDPR refers to transfers to a third country or international organisation, as well as “''onward transfers of personal data from the third country or an international organisation to another third country or to another international organisation''”. In the same way that the GDPR does not define transfers, onward transfers are not defined either. Nonetheless, the wording of the article does provide some clues as to what constitutes an onward transfer. This appears to be a transfer (as defined above) to another third country or international organisation, which occurs after the personal data has already been transferred to a third country or international organisation (see Recital 101 GDPR). In other words, “''an onward transfer refers to a further transfer of personal data after they have been transferred to a data importer outside the EU or EEA''”.<ref>''Kuner'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 44 GDPR, p. 763 (Oxford University Press 2020).</ref>


===Material Scope===
====Subject to the other Provisions of this Regulation====
Article 44 of the General Data Protection Regulation (GDPR) provides the general principle for transfers under the Regulation. It also outlines specific stakeholders concerned by Chapter V. It must be noted from the outset that Article 44 specifies that the transfers concerned here relate to personal data that is “''undergoing processing or are intended for processing after transfer…''”. This is self-evident considering the general scope of application of the GDPR, outlined in Article 2 GDPR.
Under Article 44 GDPR, the transfer (or the onward transfer) shall only take place ''“subject to the other provisions of this Regulation”.'' As a result, data controllers or processors exporting personal data to third countries or international organisations must ensure the GDPR compliance of the overall processing activity.<ref>See Recital 101 GDPR: “''In any event, transfers to third countries and international organisations may only be carried out in full compliance with this Regulation''”.</ref> This clarifies that obligations and conditions outlined in Chapter V do not replace those outlined throughout the GDPR. Instead, they “''build on those of the rest of the GDPR''”.<ref>''Kuner'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 44 GDPR, p. 757 (Oxford University Press 2020).</ref> Full compliance with the GDPR means ensuring that there is a valid legal basis for processing the personal data, whether that is in the context of [[Article 6 GDPR|Article 6 or 9 GDPR]]. Similarly, the GDPR principles under [[Article 5 GDPR]] must be respected. Additionally, this obligation to comply with the full extent of the GDPR includes the need to give effect to data subject rights found in Chapter III of the GDPR. On that point, it is important to note that [[Article 13 GDPR|Article 13(1)(f) GDPR]], [[Article 14 GDPR|Article 14(1)(f) GDPR]], [[Article 15 GDPR|Article 15(1)(c) GDPR]] and [[Article 15 GDPR|Article 15(2) GDPR]], make specific reference to transfers of personal data to third countries or international organisations.  


====Transfers====
====Compliance with the Conditions laid down in Chapter V====
Article 44 addresses transfers of personal data to third countries or international organisations. However, there is no definition of what a “''transfer''” is in the GDPR. Looking to the Data Protection Directive does not provide any support as there was no definition in the previous law.<ref>Case C-101/01, ''Bodil Lindqvist'' [2003] ECR I-12971, para 56.</ref>
The transfer shall also comply with the “''conditions laid down in Chapter V''”. This reiterates the need to ensure compliance with the GDPRas a whole (see requirement above), whilst placing emphasis on the specific conditions spelled out in Chapter V for each distinct transfer mechanism. According to Recital 101, international transfers can only take place if this Chapter is complied with by the controllers and processors concerned. These instruments include the recognition of the existence of an adequate level of protection in the third country or international organisation to which the data is transferred (Article 45) or, in the absence of such adequate level of protection, the implementation of appropriate safeguards (as provided for in [[Article 46 GDPR|Articles 46(1)]], [[Article 46 GDPR|(2)]] and [[Article 46 GDPR|(3) GDPR]]) by the exporter (controller or processor). According to [[Article 49 GDPR]], personal data can be transferred to a third country or an international organisation without the existence of an adequate level of protection or the implementation of appropriate safeguards only in specific situations and under certain conditions.<ref>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’, 18 November 2018 (Version for public consultation), p. 8 (available [https://edpb.europa.eu/our-work-tools/documents/public-consultations/2021/guidelines-052021-interplay-between-application_en here]).</ref> These conditions are outlined in the commentary on [[Article 45 GDPR|Articles 45]] to [[Article 50 GDPR|50 GDPR]].
 
Despite several cases on international data transfers before the Court of Justice of the European Union (CJEU), a clear definition is still missing. One can however turn to the ''Bodil Lindqvist'' judgment to understand what a data transfer is not. In this decision, the CJEU held that uploading data on the internet, providing accessibility around the world, is not an international transfer within the meaning of the Directive. The Court reached this conclusion on the basis that it would otherwise entail that any operation on the internet is an international transfer.<ref>Ibid para 68-69.</ref>
 
Kuner argues that ''Bodil Lindqvist'' should be interpreted as indicating that a transfer is “''an active act which involves sending data, and not just making it passively accessible''”.<ref>Kuner (n1) 762.</ref> However, he also goes on to suggest that ''Bodil Lindqvist'' would not be decided similarly today given the recent far reaching decisions by the CJEU on international transfers. Instead, he argues that the ''Schrems I''<ref>Case C-362/14, ''Maximillian Schrems v Data Protection Commissioner'' [2015] ECLI:EU:C:2015:650</ref> goes much further than ''Bodil Lindqvist,'' to the extent that the Court would find it difficult to conclude that placing personal data on the internet does not qualify as an international data transfer.<ref>Kuner (n1) 763.</ref> As such, it is argued that ''Bodil Lindqvist'' does not provide much clarity on the definition of international data transfers.
 
Additionally, the CJEU did not define “''transfer''” in the ''Schrems I'' judgment (under the Directive). Similarly (and unfortunately), the same goes for the 2020 ''Schrems II'' judgment (under the GDPR). <ref>Case C-311/18, ''Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems'' [2020] ECLI:EU:C:2020:559.</ref>
 
====Onwards transfers====
Article 44 refers to transfers to a third country or international organisation, as well as “''onward transfers of personal data from the third country or an international organisation to another third country or to another international organisation''”. In the same way that the GDPR does not define transfers, onward transfers are not defined either.
 
Nonetheless, the wording of the article does provides clues as to what an onward transfer is. This appears to be a transfer (whatever a “''transfer''” entails, see above) to a third country or international organisation that occurs after the personal data has already been transferred to a third country or international organisation (See Recital 101). In other words, “''an onward transfer refers to a further transfer of personal data after they have been transferred to a data importer outside the EU or EEA''”.<ref>Kuner (n1) 763.</ref>
 
===Concerned entities===
When discussing international data transfers, there are exporters of data and importers of data.
 
====Exporter: Data controllers and processors====
It is clear from Article 44 that data controllers and data processors are both concerned when it comes to international transfers. Data controllers or processors transferring personal data internationally are also refered to as exporters.
 
====Importer: Entities in third countries and international organisations====
Data controllers and processors that are located internationally – i.e. outside of the EU/EEA – are importers. These can be public or private stakeholders. Similarly, Article 44 clarifies that Chapter V also applies to international organisations that received personal data transfered by the exporters.
 
According to Kuner, Article 44 and its mention of international organisations creates an interaction between EU data protection law and public international law. However, Kuner clarified that public international law – i.e. treaty law – had primacy over secondary law such as the GDPR.<ref>ibid 763-764.</ref> Whilst this is true, it is important to consider that the right to data protection is also a right enshrined in the EU Charter of Fundamental Rights of the European Union (Article 8), which is EU primary law.<ref>EDPB, “Recommendations 1/2020 on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data”, adopted on 10 November 2020, 7.</ref> Therefore, the interaction between public international law and the right to data protection as enshrined in the Charter could be interesting to investigate.  
 
Recital 102 specifies that “''Member States may conclude international agreements which involve the transfer of personal data to third countries or international organisations, as far as such agreements do not affect this Regulation''”. This illustrates in what context the interaction between EU data protection law and public international law may occur.
 
===General requirements for transfers===
Article 44 sets out three core requirements that apply to data transfers outside of the EU/EEA. The GDPR does not specifically address the relationship between Article 44 and the rest of Chapter V of the GDPR. However, the ''Schrems II'' judgment clarifies that Chapter V must be “''read in light of''” the General Principles outlined in Article 44.<ref>''DPC v Facebook Ireland Ltd and Maximillian Schrems'' (n10) para 92.</ref> Therefore, the following three requirements are applicable to the whole of Chapter V.
 
====“Subject to the other provisions of this Regulation”====
The phrase ''“subject to the other provisions of this Regulation”'' in Article 44 provides the first requirement for international transfers that comply with EU data protection law. As a result, data controllers or processors exporting personal data to third countries or international organisations must ensure that these comply with the rest of the GDPR before they are carried out.<ref>See Recital 101: “''In any event, transfers to third countries and international organisations may only be carried out in full compliance with this Regulation''”.</ref> As Kuner notes, this clarifies that obligations and conditions outlined in Chapter V do not replace those outlined throughout the GDPR. Instead, they “''build on those of the rest of the GDPR''”.<ref>Kuner (n1) 757.</ref>
 
Full compliance with the GDPR means ensuring that there is a valid legal basis for processing the personal data, whether that is in the context of Article 6 or 9 GDPR. Similarly, the GDPR principles under Article 5 must be respected. According to the European Data Protection Board (EDPB), particular attention should be paid on the principle of accountability. Additionally, this obligation to comply with the full extent of the GDPR includes the need to give effect to data subject rights found in Chapter III of the GDPR. On that point, it is important to note that Article 13(1)(f), Article 14(1)(f), Article 15(1)(c) and Article 15(2) GDPR, make specific reference to transfers of personal data to third countries or international organisations.
 
====Compliance with the conditions laid down in Chapter V====
The second requirement outlined in Article 44 is that data controllers and processors must ensure compliance with the “''conditions laid down in Chapter V''”. This reiterates the need to ensure compliance with the Regulation as a whole (see requirement above) whilst placing emphasis on the specific conditions spelled out in Chapter V for each distinct transfer mechanisms. According to Recital 101, international transfers can only take place if this Chapter is complied with by the controllers and processors concerned.
 
These conditions are outlined in the commentary on Articles 45 to 50 GDPR.
 
====Level of protection of natural persons guaranteed====
The final requirement outlined in Article 44 for the purpose of Chapter V GDPR is the need to guarantee that the level of protection of natural persons provided by the Regulation is “''not undermined''”.
 
The GDPR provides little clarity as to what this entails. Additionally, the difficulty in interpreting this requirement comes from the fact that it is articulated differently in distinct parts of the Regulation. For example, Recital 102 refers to an “''appropriate level of protection for the fundamental rights of the data subjects''”, whilst Article 46 GDPR requires an “''adequate level of protection''”. It is therefore questioned whether these distinct phrases outline the same general requirement for transfers, regardless of the mechanism used or whether they outline specific requirements for different mechanisms.
 
In this context, it is important to note that the Court of Justice has provided clarity on the predecessor of Article 44 GDPR (Article 25 GDPR) which only used the phrase “''adequate level of protection''”. The Court held that this phrase, in the context of adequacy decisions as a transfer mechanism, required the third country “''to ensure, by reason of its domestic law or its international commitments, a level of protection of fundamenral rights and freedoms that is essentially equivalent to that guaranteed within the European Union by virtue of Directive 95/46''”. The Court also mentioned that this must be interpreted in light of the Charter.<ref>''Schrems v DPC'' (n7) para 73.</ref>
 
Additionally, the Court of Justice has, in the ''Schrems II'' judgment, relied on the phrase “''a level of protection essentially equivalent''” to interpret the appropriate safeguards required under Article 46(1) and Article 46(2)(c) GDPR,<ref>''DPC v Facebook Ireland Ltd and Maximillian Schrems'' (n10) para 105.</ref> in addition to reiterating that it applies to adequacy decisions. The EDPB also suggested that this interpretation applies to transfers generally - i.e. to Article 44. The Board specifically outlined that an “''essentially equivalent level of protection''” can provide a guarantee that the level of protection under the GDPR is not “''undermined''”. <ref>EDPB, “Guidelines 2/2020 on articles 46(2)(a) and 46(3)(b) of Regulation 2016/679 for transfers of personal data between EEA and non-EEA public authorities and bodies”, adopted on 15 December 2020 after public consultation, v2.0, 7.</ref>
 
Therefore, it is argued that the requirement in Article 44 GDPR that the level of protection of natural persons guaranteed by this Regulation must not be undermined should be interpreted generally as meaning that the level of protection must be “''essentially equivalent''” as the one afforded to data subjects under the GDPR. This entails that data subjects within the scope of the GDPR are protected even where their personal data is exported outside of the EU/EEA to third countries or international organisations.
----


====Guaranteed Level of Protection of Natural Persons====
The last part of Article 44 GDPR specifies that all the provisions in Chapter V must be applied in order to ensure that the protection of individuals guaranteed by the GDPR is not compromised. The [[CJEU - C-311/18 - Schrems II|''Schrems II'']] judgment clarifies that Chapter V must be “''read in light of''” the general principles outlined in Article 44.<ref>CJEU, Case C-311/18, ''Facebook Ireland and Schrems'', 16 July 2020, margin number 92 (available [https://curia.europa.eu/juris/document/document.jsf?text=&docid=228677&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=2603508 here]).</ref> This means, among other things, that the third country to which the data is transferred must ensure that “''a level of protection essentially equivalent''” to the GDPR can provide a guarantee that the level of protection under it  is not “''undermined''”.<ref>CJEU, Case C-311/18, ''Facebook Ireland and Schrems'', 16 July 2020, margin number 105 (available [https://curia.europa.eu/juris/document/document.jsf?text=&docid=228677&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=2603508 here]). Along the same lines, EDPB, ‘Guidelines 2/2020 on articles 46 (2) (a) and 46 (3) (b) of Regulation 2016/679 for transfers of personal data between EEA and non-EEA public authorities and bodies’, 15 December 2020 (Version 2.0), pp. 6-7 (available [https://edpb.europa.eu/sites/default/files/files/file1/edpb_guidelines_202002_art46guidelines_internationaltransferspublicbodies_v2_en.pdf here]).</ref> This provision therefore serves as a catch-all clause which, on the one hand, makes it possible to assess the conformity of specific types of transfer and, on the other, enables the provisions of Chapter V to be interpreted in such a way as to protect the interests of the data subject. Furthermore, since this sentence does not only refer to the actual process of data transfer, but to "''all the conditions of this chapter''", it also includes Article 50 GDPR, and therefore addresses both the European Commission and data protection authorities, requiring them to effectively enforce the GDPR.<ref>''Beck'', in Wolff, Brink, BeckOK Datenschutrecht, Article 44 GDPR, margin number 46 (C.H. Beck 2020, 39th Edition).</ref>
==Decisions==
==Decisions==
→ You can find all related decisions in [[:Category:Article 44 GDPR]]
→ You can find all related decisions in [[:Category:Article 44 GDPR]]

Latest revision as of 08:51, 27 March 2023

← Article 44 - General principle for transfers →
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Chapter 1: General provisions

Article 1: Subject-matter and objectives
Article 2: Material scope
Article 3: Territorial scope
Article 4: Definitions

Chapter 2: Principles

Article 5: Principles relating to processing of personal data
Article 6: Lawfulness of processing
Article 7: Conditions for consent
Article 8: Conditions applicable to child’s consent in relation to information society services
Article 9: Processing of special categories of personal data
Article 10: Processing of personal data relating to criminal convictions and offences
Article 11: Processing which does not require identification

Chapter 3: Rights of the data subject

Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject
Article 13: Information to be provided where personal data are collected from the data subject
Article 14: Information to be provided where personal data have not been obtained from the data subject
Article 15: Right of access by the data subject
Article 16: Right to rectification
Article 17: Right to erasure (‘right to be forgotten’)
Article 18: Right to restriction of processing
Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing
Article 20: Right to data portability
Article 21: Right to object
Article 22: Automated individual decision-making, including profiling
Article 23: Restrictions

Chapter 4: Controller and processor

Article 24: Responsibility of the controller
Article 25: Data protection by design and by default
Article 26: Joint controllers
Article 27: Representatives of controllers or processors not established in the Union
Article 28: Processor
Article 29: Processing under the authority of the controller or processor
Article 30: Records of processing activities
Article 31: Cooperation with the supervisory authority
Article 32: Security of processing
Article 33: Notification of a personal data breach to the supervisory authority
Article 34: Communication of a personal data breach to the data subject
Article 35: Data protection impact assessment
Article 36: Prior consultation
Article 37: Designation of the data protection officer
Article 38: Position of the data protection officer
Article 39: Tasks of the data protection officer
Article 40: Codes of conduct
Article 41: Monitoring of approved codes of conduct
Article 42: Certification
Article 43: Certification bodies

Chapter 5: Transfers of personal data

Article 44: General principle for transfers
Article 45: Transfers on the basis of an adequacy decision
Article 46: Transfers subject to appropriate safeguards
Article 47: Binding corporate rules
Article 48: Transfers or disclosures not authorised by Union law
Article 49: Derogations for specific situations
Article 50: International cooperation for the protection of personal data

Chapter 6: Supervisory authorities

Article 51: Supervisory authority
Article 52: Independence
Article 53: General conditions for the members of the supervisory authority
Article 54: Rules on the establishment of the supervisory authority
Article 55: Competence
Article 56: Competence of the lead supervisory authority
Article 57: Tasks
Article 58: Powers
Article 59: Activity reports

Chapter 7: Cooperation and consistency

Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned
Article 61: Mutual assistance
Article 62: Joint operations of supervisory authorities
Article 63: Consistency mechanism
Article 64: Opinion of the Board
Article 65: Dispute resolution by the Board
Article 66: Urgency procedure
Article 67: Exchange of information
Article 68: European Data Protection Board
Article 69: Independence
Article 70: Tasks of the Board
Article 71: Reports
Article 72: Procedure
Article 73: Chair
Article 74: Tasks of the Chair
Article 75: Secretariat
Article 76: Confidentiality

Chapter 8: Remedies, liability and penalties

Article 77: Right to lodge a complaint with a supervisory authority
Article 78: Right to an effective judicial remedy against a supervisory authority
Article 79: Right to an effective judicial remedy against a controller or processor
Article 80: Representation of data subjects
Article 81: Suspension of proceedings
Article 82: Right to compensation and liability
Article 83: General conditions for imposing administrative fines
Article 84: Penalties

Chapter 9: Specific processing situations

Article 85: Processing and freedom of expression and information
Article 86: Processing and public access to official documents
Article 87: Processing of the national identification number
Article 88: Processing in the context of employment
Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes
Article 90: Obligations of secrecy
Article 91: Existing data protection rules of churches and religious associations

Chapter 10: Delegated and implementing acts

Article 92: Exercise of the delegation
Article 93: Committee procedure

Chapter 11: Final provisions

Article 94: Repeal of Directive 95: /46: /EC
Article 95: Relationship with Directive 20: 02: /58: /EC
Article 96: Relationship with previously concluded Agreements
Article 97: Commission reports
Article 98: Review of other Union legal acts on data protection
Article 99: Entry into force and application

Legal Text


Article 44 - General principle for transfers

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.

Relevant Recitals

Recital 6: Technological Transformation to Ensure a High Level of Protection
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.

Recital 101: International Transfers
Flows of personal data to and from countries outside the Union and international organisations are necessary for the expansion of international trade and international cooperation. The increase in such flows has raised new challenges and concerns with regard to the protection of personal data. However, when personal data are transferred from the Union to controllers, processors or other recipients in third countries or to international organisations, the level of protection of natural persons ensured in the Union by this Regulation should not be undermined, including in cases of onward transfers of personal data from the third country or international organisation to controllers, processors in the same or another third country or international organisation. In any event, transfers to third countries and international organisations may only be carried out in full compliance with this Regulation. A transfer could take place only if, subject to the other provisions of this Regulation, the conditions laid down in the provisions of this Regulation relating to the transfer of personal data to third countries or international organisations are complied with by the controller or processor.

Recital 102: International Agreements
This Regulation is without prejudice to international agreements concluded between the Union and third countries regulating the transfer of personal data including appropriate safeguards for the data subjects. Member States may conclude international agreements which involve the transfer of personal data to third countries or international organisations, as far as such agreements do not affect this Regulation or any other provisions of Union law and include an appropriate level of protection for the fundamental rights of the data subjects.

Commentary

Under Article 44, GDPR, any transfer of personal data to a third country (or international organisation) shall take place only it respects the GDPR as well as the specific conditions laid down in Chapter V. The same conditions must also be met for onward transfers to further third countries. The same provision specifies that all the provisions in Chapter V must be applied in order to ensure that the protection of individuals guaranteed by the GDPR is not compromised.

EDPB Guidelines: on this Article, and the rest of Chapter V, please see 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

Transfers

There is no definition of the notion of a personal data transfer to a third country or an international organization in the GDPR. However, the European Data Protection Board (EDPB) has recently identified three criteria which, when cumulated, indicate that there is such a transfer: (i) a controller or a processor is subject to the GDPR for a given processing operation; (ii) this controller or processor (“exporter”) discloses by transmission, or otherwise makes personal datasubject to this processing, available to another controller, joint controller or processor (“importer”); and, (iii) the importer is in a third country or is an international organisation, irrespective of whether or not this importer is subject to the GDPR regarding the given processing activity, in accordance with Article 3 GDPR. If all of the criteria (as identified by the EDPB) are met, then a “transfer to a third country or to an international organisation” has taken place. Thus, a transfer implies that personal data are sent or made available by a controller or processor (exporter) which, regarding the given processing, is subject to the GDPR (pursuant to Article 3 GDPR), to a different controller or processor (importer) in a third country, regardless of whether or not this importer is subject to the GDPR in respect of the given processing. As a consequence, "the controller or processor in a ‘transfer’” situation (according to the criteria described above) needs to comply with the conditions of Chapter V and frame the transfer by using the instruments which aim at protecting personal data after they have been transferred to a third country or an international organisation."[1]

Onwards Transfers

Article 44 GDPR refers to transfers to a third country or international organisation, as well as “onward transfers of personal data from the third country or an international organisation to another third country or to another international organisation”. In the same way that the GDPR does not define transfers, onward transfers are not defined either. Nonetheless, the wording of the article does provide some clues as to what constitutes an onward transfer. This appears to be a transfer (as defined above) to another third country or international organisation, which occurs after the personal data has already been transferred to a third country or international organisation (see Recital 101 GDPR). In other words, “an onward transfer refers to a further transfer of personal data after they have been transferred to a data importer outside the EU or EEA”.[2]

Subject to the other Provisions of this Regulation

Under Article 44 GDPR, the transfer (or the onward transfer) shall only take place “subject to the other provisions of this Regulation”. As a result, data controllers or processors exporting personal data to third countries or international organisations must ensure the GDPR compliance of the overall processing activity.[3] This clarifies that obligations and conditions outlined in Chapter V do not replace those outlined throughout the GDPR. Instead, they “build on those of the rest of the GDPR”.[4] Full compliance with the GDPR means ensuring that there is a valid legal basis for processing the personal data, whether that is in the context of Article 6 or 9 GDPR. Similarly, the GDPR principles under Article 5 GDPR must be respected. Additionally, this obligation to comply with the full extent of the GDPR includes the need to give effect to data subject rights found in Chapter III of the GDPR. On that point, it is important to note that Article 13(1)(f) GDPR, Article 14(1)(f) GDPR, Article 15(1)(c) GDPR and Article 15(2) GDPR, make specific reference to transfers of personal data to third countries or international organisations.

Compliance with the Conditions laid down in Chapter V

The transfer shall also comply with the “conditions laid down in Chapter V”. This reiterates the need to ensure compliance with the GDPRas a whole (see requirement above), whilst placing emphasis on the specific conditions spelled out in Chapter V for each distinct transfer mechanism. According to Recital 101, international transfers can only take place if this Chapter is complied with by the controllers and processors concerned. These instruments include the recognition of the existence of an adequate level of protection in the third country or international organisation to which the data is transferred (Article 45) or, in the absence of such adequate level of protection, the implementation of appropriate safeguards (as provided for in Articles 46(1), (2) and (3) GDPR) by the exporter (controller or processor). According to Article 49 GDPR, personal data can be transferred to a third country or an international organisation without the existence of an adequate level of protection or the implementation of appropriate safeguards only in specific situations and under certain conditions.[5] These conditions are outlined in the commentary on Articles 45 to 50 GDPR.

Guaranteed Level of Protection of Natural Persons

The last part of Article 44 GDPR specifies that all the provisions in Chapter V must be applied in order to ensure that the protection of individuals guaranteed by the GDPR is not compromised. The Schrems II judgment clarifies that Chapter V must be “read in light of” the general principles outlined in Article 44.[6] This means, among other things, that the third country to which the data is transferred must ensure that “a level of protection essentially equivalent” to the GDPR can provide a guarantee that the level of protection under it  is not “undermined”.[7] This provision therefore serves as a catch-all clause which, on the one hand, makes it possible to assess the conformity of specific types of transfer and, on the other, enables the provisions of Chapter V to be interpreted in such a way as to protect the interests of the data subject. Furthermore, since this sentence does not only refer to the actual process of data transfer, but to "all the conditions of this chapter", it also includes Article 50 GDPR, and therefore addresses both the European Commission and data protection authorities, requiring them to effectively enforce the GDPR.[8]

Decisions

→ You can find all related decisions in Category:Article 44 GDPR

References

  1. ↑ 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’, 18 November 2018 (Version for public consultation) (available here).
  2. ↑ Kuner, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 44 GDPR, p. 763 (Oxford University Press 2020).
  3. ↑ See Recital 101 GDPR: “In any event, transfers to third countries and international organisations may only be carried out in full compliance with this Regulation”.
  4. ↑ Kuner, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 44 GDPR, p. 757 (Oxford University Press 2020).
  5. ↑ 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’, 18 November 2018 (Version for public consultation), p. 8 (available here).
  6. ↑ CJEU, Case C-311/18, Facebook Ireland and Schrems, 16 July 2020, margin number 92 (available here).
  7. ↑ CJEU, Case C-311/18, Facebook Ireland and Schrems, 16 July 2020, margin number 105 (available here). Along the same lines, EDPB, ‘Guidelines 2/2020 on articles 46 (2) (a) and 46 (3) (b) of Regulation 2016/679 for transfers of personal data between EEA and non-EEA public authorities and bodies’, 15 December 2020 (Version 2.0), pp. 6-7 (available here).
  8. ↑ Beck, in Wolff, Brink, BeckOK Datenschutrecht, Article 44 GDPR, margin number 46 (C.H. Beck 2020, 39th Edition).
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