Article 44 GDPR

← Article 44 - General principle for transfers →
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 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.

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 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.

Transfers

There is no definition in the GDPR of the notion of a personal data transfer to a third country or an international organization. However, the 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 the given processing; (ii) This controller or processor (“exporter”) discloses by transmission or otherwise makes personal data, subject 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 in respect of the given processing in accordance with Article 3.

If all of the criteria as identified by the EDPB are met, there is a “transfer to a third country or to an international organisation”. 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, 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."

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 provides clues as to what an onward transfer is. This appears to be a transfer (as defined 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 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”.

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. 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”.

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 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 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 by the exporter (controller or processor) of appropriate safeguards as provided for in Article 46.13 According to Article 49, 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. These conditions are outlined in the commentary on Articles 45 to 50 GDPR.

Guaranteed Level of Protection of Natural Persons

The final requirement outlined in Article 44 GDPR 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 GDPR 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 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.

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) GDPR and Article 46(2)(c) GDPR, 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 GDPR. 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”.

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.

Decisions

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