Article 49 GDPR

← Article 49 - Derogations for specific situations →
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 49 - Derogations for specific situations

1. In the absence of an adequacy decision pursuant to Article 45(3), or of appropriate safeguards pursuant to Article 46, including binding corporate rules, a transfer or a set of transfers of personal data to a third country or an international organisation shall take place only on one of the following conditions:

(a) the data subject has explicitly consented to the proposed transfer, after having been informed of the possible risks of such transfers for the data subject due to the absence of an adequacy decision and appropriate safeguards;

(b) 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 at the data subject's request;

(c) the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and another natural or legal person;

(d) the transfer is necessary for important reasons of public interest;

(e) the transfer is necessary for the establishment, exercise or defence of legal claims;

(f) 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;

(g) the transfer is made from a register which according to Union or Member State law is intended to provide information to the public and which is open to consultation either by the public in general or by any person who can demonstrate a legitimate interest, but only to the extent that the conditions laid down by Union or Member State law for consultation are fulfilled in the particular case.

Where a transfer could not be based on a provision in Article 45 or 46, including the provisions on binding corporate rules, and none of the derogations for a specific situation referred to in the first subparagraph of this paragraph is applicable, a transfer to a third country or an international organisation may take place only if the transfer is not repetitive, concerns only a limited number of data subjects, is necessary for the purposes of compelling legitimate interests pursued by the controller which are not overridden by the interests or rights and freedoms of the data subject, and the controller has assessed all the circumstances surrounding the data transfer and has on the basis of that assessment provided suitable safeguards with regard to the protection of personal data. The controller shall inform the supervisory authority of the transfer. The controller shall, in addition to providing the information referred to in Articles 13 and 14, inform the data subject of the transfer and on the compelling legitimate interests pursued.

2. A transfer pursuant to point (g) of the first subparagraph of paragraph 1 shall not involve the entirety of the personal data or entire categories of the personal data contained in the register. Where the register is intended for consultation by persons having a legitimate interest, the transfer shall be made only at the request of those persons or if they are to be the recipients.

3. Points (a), (b) and (c) of the first subparagraph of paragraph 1 and the second subparagraph thereof shall not apply to activities carried out by public authorities in the exercise of their public powers.

4. The public interest referred to in point (d) of the first subparagraph of paragraph 1 shall be recognised in Union law or in the law of the Member State to which the controller is subject.

5. In the absence of an adequacy decision, Union or Member State law may, for important reasons of public interest, expressly set limits to the transfer of specific categories of personal data to a third country or an international organisation. Member States shall notify such provisions to the Commission.

6. The controller or processor shall document the assessment as well as the suitable safeguards referred to in the second subparagraph of paragraph 1 of this Article in the records referred to in Article 30.

Relevant Recitals

Recital 111

Provisions should be made for the possibility for transfers in certain circumstances where the data subject has given his or her explicit consent, where the transfer is occasional and necessary in relation to a contract or a legal claim, regardless of whether in a judicial procedure or whether in an administrative or any out-of-court procedure, including procedures before regulatory bodies. Provision should also be made for the possibility for transfers where important grounds of public interest laid down by Union or Member State law so require or where the transfer is made from a register established by law and intended for consultation by the public or persons having a legitimate interest. In the latter case, such a transfer should not involve the entirety of the personal data or entire categories of the data contained in the register and, when the register is intended for consultation by persons having a legitimate interest, the transfer should be made only at the request of those persons or, if they are to be the recipients, taking into full account the interests and fundamental rights of the data subject.

Recital 112

Those derogations should in particular apply to data transfers required and necessary for important reasons of public interest, for example in cases of international data exchange between competition authorities, tax or customs administrations, between financial supervisory authorities, between services competent for social security matters, or for public health, for example in the case of contact tracing for contagious diseases or in order to reduce and/or eliminate doping in sport. A transfer of personal data should also be regarded as lawful where it is necessary to protect an interest which is essential for the data subject's or another person's vital interests, including physical integrity or life, if the data subject is incapable of giving consent. In the absence of an adequacy decision, Union or Member State law may, for important reasons of public interest, expressly set limits to the transfer of specific categories of data to a third country or an international organisation. Member States should notify such provisions to the Commission. Any transfer to an international humanitarian organisation of personal data of a data subject who is physically or legally incapable of giving consent, with a view to accomplishing a task incumbent under the Geneva Conventions or to complying with international humanitarian law applicable in armed conflicts, could be considered to be necessary for an important reason of public interest or because it is in the vital interest of the data subject.

Recital 113

Transfers which can be qualified as not repetitive and that only concern a limited number of data subjects, could also be possible for the purposes of the compelling legitimate interests pursued by the controller, when those interests are not overridden by the interests or rights and freedoms of the data subject and when the controller has assessed all the circumstances surrounding the data transfer. The controller should give particular consideration to the nature of the personal data, the purpose and duration of the proposed processing operation or operations, as well as the situation in the country of origin, the third country and the country of final destination, and should provide suitable safeguards to protect fundamental rights and freedoms of natural persons with regard to the processing of their personal data. Such transfers should be possible only in residual cases where none of the other grounds for transfer are applicable. For scientific or historical research purposes or statistical purposes, the legitimate expectations of society for an increase of knowledge should be taken into consideration. The controller should inform the supervisory authority and the data subject about the transfer.

Recital 114

In any case, where the Commission has taken no decision on the adequate level of data protection in a third country, the controller or processor should make use of solutions that provide data subjects with enforceable and effective rights as regards the processing of their data in the Union once those data have been transferred so that that they will continue to benefit from fundamental rights and safeguards.

Recital 115

Some third countries adopt laws, regulations and other legal acts which purport to directly regulate the processing activities of natural and legal persons under the jurisdiction of the Member States. This may include judgments of courts or tribunals or decisions of administrative authorities in third countries requiring a controller or processor to transfer or disclose personal data, and which are not based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State. The extraterritorial application of those laws, regulations and other legal acts may be in breach of international law and may impede the attainment of the protection of natural persons ensured in the Union by this Regulation. Transfers should only be allowed where the conditions of this Regulation for a transfer to third countries are met. This may be the case, inter alia, where disclosure is necessary for an important ground of public interest recognised in Union or Member State law to which the controller is subject.

Commentary

Overview

The derogations from Article 49 are a limited closed list of exceptions that can be applied for international transfers of data to third-countries when no other mechanism of Chapter V can be applied. As explained by the EDPB, the mechanism in Chapter V act as a layer structure with three different levels: In the first place, an adequacy decision from Article 45 shall be used, when it exists. In the second place, appropriate safeguards from Article 46, such as binding corporate rules or contractual clauses, shall be used. Lastly, lacking any of the above mentioned options, derogations from Article 49 may be used. Additionally, Article 44 must be also be complied with, meaning that any transfer based on a derogation shall anyhow meet the conditions contained in the provisions of the GDPR: data protection principles are still applicable, and the transfer must be based on a legal basis. According to the same Article, the level of protection that the GDPR offers to natural persons shall not be undermined and fundamental rights shall never be breached. An adequate level of protection shall be always ensured. It is important to note that derogations shall be interpreted restrictively.  Following the logic that exceptions shall not become the rule, two main limitations apply in a general sense for the transfer based on any of the options for derogations: transfers shall be occasional and non-repetitive and a necessity test shall always be carried out.

Consent

According to Article 49(1)(a), transfers to third countries can happen when “the data subject has explicitly consented to the proposed transfer, after having been informed of the possible risks of such transfers for the data subject due to the absence of an adequacy decision and appropriate safeguards”. Here, the general conditions for consent from Article 7 apply. However, differently from such Article, that only requires unambiguous consent, this derogation is stricter and requires an explicit consent from the data subject, given the risk involved. This requires an express statement of consent from the data subject.

Consent shall also be specific and informed. Consent needs to be specifically given for the processing regarding the transfer, ensuring a level of transparency that allows the data subject to be aware of the particular existing risks. General consent for other processing related processing activities is not valid. This is related to the requirement of informed consent, as the data subject can only know about the risks involved if they are properly informed about the specific circumstances of the transfer and the risks it might pose. The data subject must therefore have full knowledge of the specific facts of the transfers, and the risks that a data transfer to a third country which does not ensure the same level of protection entails.

The consent, in accordance to Article 7, shall be always withdraw-able.

Necessary for the performance of a contract between the data subject and the controller or for the implementation of pre-contractual measures taken at the data subject's request

According to Article 49(1)(b), transfers to third countries can take place when the “transfer is necessary for the performance of a contract between the data subject and the controller or for the implementation of pre-contractual measures taken at the data subject’s request”. The use of this derogation is limited by the two above-mentioned conditionings: a necessity test is needed and the transfer may only be occasional, as Recital 111 indicates.

Firstly, the transfer needs to be necessary for the performance of such contract. There shall be a substantial connection; general related activities to a contract or activities that may be carried out without such transfer are not included. Additionally, the pre-contractual steps shall be taken at the data subject request; meaning that the data subject shall explicitly request them, but not just be offered to them.

Secondly, the transfer shall be occasional. Therefore, transfers that occur regularly, such as transfers derived from a business relationship that generally requires such transfers to happen, are not included. Occasional transfers derived from a particular situation that arises in a business relationship may however be included. In accordance with Article 49(3), this derogation cannot apply to activities carried out by public authorities in the exercise of their public powers.

Necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and another natural or legal person

According to Article 49(1)(c), transfers to third countries can take place when the transfer is “necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and another natural or legal person”. Similarly to derogation from Article 49(1)(b), this derogation may only be applied in an occasional basis and carrying out a necessity test. There shall be a close and substantial link between the transfer and a contract concluded in the data subject’s interest. In accordance with Article 49(3), this derogation cannot apply to activities carried out by public authorities in the exercise of their public powers.

Necessary for important reasons of public interest

According to Article 49(1)(d), transfers to third countries can take place when the transfer is “necessary for important reasons of public interest”. Only public interests recognized in Union law or in the law of the Member State to which the controller is subject may be taken into account, in accordance with Article 49(4). The provision that defines such public interest must not be abstract; it needs to particularly address the same activity linked to the transfer in both countries. They will be allowed, for example, for important public interest recognised in international agreements or conventions signed by both countries. It is the public interest what makes the derogation applicable, not the nature of the organization. Therefore, private entities seeking such public interest may also rely on this derogation. General limitations for derogations – the transfer is occasional and a necessity test is carried out – must also be applied.

Necessary for the establishment, exercise or defence of legal claims

According to Article 49(1)(e), transfers to third countries can take place when the “transfer is necessary for the establishment, exercise or defence of legal claims”. This includes any kind of proceeding – criminal, administrative or arbitration proceedings, for example – and pre-trial discovery procedures, as long as the processing is closely related to the activity, it is made occasionally and is not repetitive and refers not a mere possibility but to a particular proceeding. The only condition regarding the nature of the procedure is that it must have its basis in law. There must be a substantial connection between the transfer and the specific exercise of such right, and only the data that is particularly necessary for such exercise shall be transferred.

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

According to Article 49(1)(f), transfers to third countries can take place when the “transfer 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”. In this case, what is relevant is the incapacity of the data subject to provide consent. If the data subject is able to consent, even if the data transfer is necessary to protect their vital interest, this derogation shall not be applied; but derogation from Article 49(1)(a).

The incapacity may be physical, mental or legal. Therefore, a case of a medical emergency in which the data subject is unconscious is a good example. The data subject may also be mentally incapable of giving consent, or may not have legal capacity – e.g. because they are a minor. Such incapability needs to be proved, and the data subject must be facing an imminent risk of serious harm. This derogation may also apply in case of armed conflict or rescue and retrieval operations.

Transfers made from a public register

According to Article 49(1)(g), transfers to third countries can take place when the “transfer is made from a public registry”. Such register must be open to public consultation by the public in general or by anyone who can demonstrate a legitimate interest. Two conditions must be met: firstly, the conditions for consultation set by the law must be fulfilled, and secondly, the principles of the GDPR must be applied, meaning that the controller needs to asses if the transfer is appropriate, considering the interests and rights of the data subject. In accordance with Article 49(3), this derogation cannot apply to activities carried out by public authorities in the exercise of their public powers.

Compelling legitimate interests of the controller

According to Article 49(1)(§2), transfers to third countries can take place when the transfer takes place due to a “compelling legitimate interests of the controller”. This derogation may only be applicable when no mechanisms from Articles 45 and 46 and no other derogation can apply. It shall only be used in residual cases, when there is no other option available. The legitimate interest of the controller shall not be overridden by the interests and rights of the data subject. It must also be essential for the controller’s interests, non-repetitive, and the controller must be able to demonstrate the necessity for such transfer.

For this, a balancing test needs to be carried out. This shall include the balancing of the controller’s interest against the data subject interest and rights. Suitable additional safeguards must be provided to reduce the risk and the impact of the transfer. For evidence purposes, it is also recommendable that the controller informs the supervisory activity about such transfer and records all relevant aspects. The controller also need to inform the data subject about the transfer and related relevant information.

Limitation of transfers based on important reasons of public interest

According to Article 49(5), the European Union or Member States can provide in the law for limitations of transfers of specific categories of data to third countries, based on important reasons of public interest. This may only cover specific and limited cases, and must be expressly stated in the legal provision.

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Decisions

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