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

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

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

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

Overview

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 outlines the general rules that apply to international transfers.

Material Scope

Article 44 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 GDPR 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.

Transfers

Article 44 GDPR 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.

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.

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”. 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 goes much further 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. 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 DPD). Similarly (and unfortunately), the same goes for the 2020 Schrems II judgment (under the GDPR).

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 (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 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”.

Concerned Entities

When discussing international data transfers, there are exporters and importers of data.

Exporter: Data Controllers and Processors

It is clear from Article 44 GDPR 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 referred 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 GDPR clarifies that Chapter V also applies to international organisations that received personal data transferred 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. 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. Therefore, the interaction between public international law and the right to data protection as enshrined in the Charter could be interesting to investigate.  

In this regard, Recital 102 GDPR 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 GDPR 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 GDPR 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. 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 GDPR 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. 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”.

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. 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) 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 second requirement outlined in Article 44 GDPR 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.

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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