Banner1.png
Banner3.png

Difference between revisions of "Article 3 GDPR"

From GDPRhub
 
(6 intermediate revisions by 3 users not shown)
Line 198: Line 198:
  
 
==Relevant Recitals==
 
==Relevant Recitals==
<span id="r14">
+
{{Recital/14 GDPR}}{{Recital/22 GDPR}}{{Recital/23 GDPR}}{{Recital/24 GDPR}}{{Recital/25 GDPR}}{{Recital/80 GDPR}}{{Recital/122 GDPR}}
<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 14:''' the determination of data subjects in the Union - Article 3(2)</div>
 
<div class="mw-collapsible-content">The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data. This Regulation does not cover the processing of personal data which concerns legal persons and in particular undertakings established as legal persons, including the name and the form of the legal person and the contact details of the legal person.
 
</div></div>
 
  
<span id="r22">
+
==Commentary on Article 3==
<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 22:''' the determination of an establishment of a controller or a processor in the Union - Article 3(1)</div>
+
===(1) Controller or Processor Established in the Union ===
<div class="mw-collapsible-content">
 
Any processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union should be carried out in accordance with this Regulation, regardless of whether the processing itself takes place within the Union. Establishment implies the effective and real exercise of activity through stable arrangements. The legal form of such arrangements, whether through a branch or a subsidiary with a legal personality, is not the determining factor in that respect.
 
</div></div>
 
  
<span id="r23">
+
The GDPR does not define the term "establishment." Recital 22 states that: <blockquote>''[e]stablishment implies the effective and real exercise of activity through stable arrangements. The legal form of such arrangements, whether through a branch or a subsidiary with a legal personality, is not the determining factor in that respect''”. </blockquote>This very closely resembles the CJEU - C-230/14 - Weltimmo case, according to which an establishment extends “''to any real and effective activity — even a minimal one — exercised through stable arrangements''”.<ref>CJEU, 1 October 2015, Weltimmo, C-230/14, margin number 31 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=168944&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=91583).</ref> In its guidelines, the EDPB reminded that the wording was not new as it was identical to Recital 19 of [https://eur-lex.europa.eu/eli/dir/1995/46/oj Directive 95/46/EC].<ref>EDPB, Guidelines 03/2018 on the territorial scope of the GDPR (Article 3), 12 November 2019, p. 8.
<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 23:''' the determination of the offer of goods or services- Article 3(2)(a)</div>
 
<div class="mw-collapsible-content">
 
In order to ensure that natural persons are not deprived of the protection to which they are entitled under this Regulation, the processing of personal data of data subjects who are in the Union by a controller or a processor not established in the Union should be subject to this Regulation where the processing activities are related to offering goods or services to such data subjects irrespective of whether connected to a payment. In order to determine whether such a controller or processor is offering goods or services to data subjects who are in the Union, it should be ascertained whether it is apparent that the controller or processor envisages offering services to data subjects in one or more Member States in the Union. Whereas the mere accessibility of the controller's, processor's or an intermediary's website in the Union, of an email address or of other contact details, or the use of a language generally used in the third country where the controller is established, is insufficient to ascertain such intention, factors such as the use of a language or a currency generally used in one or more Member States with the possibility of ordering goods and services in that other language, or the mentioning of customers or users who are in the Union, may make it apparent that the controller envisages offering goods or services to data subjects in the Union.
 
</div></div>
 
  
<span id="r24">
+
</ref> It also pointed out that although the threshold for “stable arrangement” is quite low in the context of online activities and that the notion of “establishment” is broad, it cannot lead to the conclusion that a “''non-EU entity has an establishment in the Union merely because the undertaking’s website is accessible in the Union''”.<ref>CJEU, 28 July 2016, Verein für Konsumenteninformation, C‑191/15, margin number 76 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=182286&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=91583). </ref>
<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 24:''' the monitoring of behaviour criterion - Article 3(2)(b)</div>
 
<div class="mw-collapsible-content">
 
In order to ensure that natural persons are not deprived of the protection to which they are entitled under this Regulation, the processing of personal data of data subjects who are in the Union by a controller or a processor not established in the Union should be subject to this Regulation where the processing activities are related to offering goods or services to such data subjects irrespective of whether connected to a payment. In order to determine whether such a controller or processor is offering goods or services to data subjects who are in the Union, it should be ascertained whether it is apparent that the controller or processor envisages offering services to data subjects in one or more Member States in the Union. Whereas the mere accessibility of the controller's, processor's or an intermediary's website in the Union, of an email address or of other contact details, or the use of a language generally used in the third country where the controller is established, is insufficient to ascertain such intention, factors such as the use of a language or a currency generally used in one or more Member States with the possibility of ordering goods and services in that other language, or the mentioning of customers or users who are in the Union, may make it apparent that the controller envisages offering goods or services to data subjects in the Union.
 
</div></div>
 
 
 
<span id="r25">
 
<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 25:''' the application of the GDPR by virtue of public international law - Article 3(3)</div>
 
<div class="mw-collapsible-content">
 
Where Member State law applies by virtue of public international law, this Regulation should also apply to a controller not established in the Union, such as in a Member State's diplomatic mission or consular post.
 
</div></div>
 
 
 
<span id="r80">
 
<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 80:''' the representative's designation - Article 3(2)</div>
 
<div class="mw-collapsible-content">
 
Where a controller or a processor not established in the Union is processing personal data of data subjects who are in the Union whose processing activities are related to the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union, or to the monitoring of their behaviour as far as their behaviour takes place within the Union, the controller or the processor should designate a representative, unless the processing is occasional, does not include processing, on a large scale, of special categories of personal data or the processing of personal data relating to criminal convictions and offences, and is unlikely to result in a risk to the rights and freedoms of natural persons, taking into account the nature, context, scope and purposes of the processing or if the controller is a public authority or body. The representative should act on behalf of the controller or the processor and may be addressed by any supervisory authority. The representative should be explicitly designated by a written mandate of the controller or of the processor to act on its behalf with regard to its obligations under this Regulation. The designation of such a representative does not affect the responsibility or liability of the controller or of the processor under this Regulation. Such a representative should perform its tasks according to the mandate received from the controller or processor, including cooperating with the competent supervisory authorities with regard to any action taken to ensure compliance with this Regulation. The designated representative should be subject to enforcement proceedings in the event of non-compliance by the controller or processor.
 
</div></div>
 
 
 
<span id="r122">
 
<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 122:''' the territorial competence of each supervisory authority - Article 3(1) and (2)</div>
 
<div class="mw-collapsible-content">
 
Each supervisory authority should be competent on the territory of its own Member State to exercise the powers and to perform the tasks conferred on it in accordance with this Regulation. This should cover in particular the processing in the context of the activities of an establishment of the controller or processor on the territory of its own Member State, the processing of personal data carried out by public authorities or private bodies acting in the public interest, processing affecting data subjects on its territory or processing carried out by a controller or processor not established in the Union when targeting data subjects residing on its territory. This should include handling complaints lodged by a data subject, conducting investigations on the application of this Regulation and promoting public awareness of the risks, rules, safeguards and rights in relation to the processing of personal data.
 
</div></div>
 
 
 
==Commentary==
 
===Applies to processing in the context of the activities of a controller or processor established in the Union, regardless of processing location (Article 3(1)) ===
 
 
 
The GDPR does not define the term "establishment". Recital 22 states that  <blockquote>“''[e]stablishment implies the effective and real exercise of activity through stable arrangements. The legal form of such arrangements, whether through a branch or a subsidiary with a legal personality, is not the determining factor in that respect''”. </blockquote>This very closely resembles the [[CJEU - C-230/14 - Weltimmo]] case, according to which an establishment extends “''to any real and effective activity — even a minimal one — exercised through stable arrangements''”<ref>C-230/14, Weltimmo, 1 October 2015, paragraph 31.</ref>. In its guidelines,<ref>EDPB guidelines 3/2018on the territorial scope of the GDPR, Version 2.1, 12 November 2019, p.8.</ref> the EDPB reminded that the wording was not new as it was identical to Recital 19 of [https://eur-lex.europa.eu/eli/dir/1995/46/oj Directive 95/46/EC]. It also pointed out that although the threshold for “stable arrangement” is quite low in the context of online activities and that the notion of “establishment” is broad, it cannot lead to the conclusion that a “''non-EU entity has an establishment in the Union merely because the undertaking’s website is accessible in the Union''”.<ref>C‑191/15, Verein für Konsumenteninformation v.  Amazon  EU  Sarl, 28  July  2016, paragraph  76.</ref>
 
  
 
The meaning of “''in the context of the activities''” has to be interpreted broadly, as confirmed by judgments of the CJEU:
 
The meaning of “''in the context of the activities''” has to be interpreted broadly, as confirmed by judgments of the CJEU:
  
In [[CJEU - C-131/12 - Google Spain]] the Court determined with regard to Directive 95/46/EC that the activity of a search engine is to be classified as “processing of personal data”. It found that <blockquote>“''inasmuch as the data processing carried out in the context of the activity of a search engine can be distinguished from and is additional to that carried out by publishers of websites and affects the data subject’s fundamental rights additionally, the operator of the search engine as the controller in respect of that processing must ensure, within the framework of its responsibilities, powers and capabilities, that that processing meets the requirements of Directive 95/46, in order that the guarantees laid down by the directive may have full effect''”.<ref>C-131/12, Google Spain, 13 May 2014, paragraph 83.</ref></blockquote>The Court explained that both terms “processing” and “controller” must be interpreted broadly as to not "''largely deprive the Directive of its effect''”<ref>C-131/12, Google Spain, 13 May 2014, paragraph 30.</ref> and "''to ensure effective and complete protection of data subjects''”.<ref>C-131/12, Google Spain, 13 May 2014, paragraph 34.</ref>
+
In CJEU - C-131/12 - Google Spain the Court determined with regard to Directive 95/46/EC that the activity of a search engine is to be classified as “processing of personal data”. It found that <blockquote>“''inasmuch as the data processing carried out in the context of the activity of a search engine can be distinguished from and is additional to that carried out by publishers of websites and affects the data subject’s fundamental rights additionally, the operator of the search engine as the controller in respect of that processing must ensure, within the framework of its responsibilities, powers and capabilities, that that processing meets the requirements of Directive 95/46, in order that the guarantees laid down by the directive may have full effect''”.<ref>CJEU, 13 May 2014, Google Spain, C‑131/12, margin number 83 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=91583).</ref></blockquote>The Court explained that both terms “processing” and “controller” must be interpreted broadly as to not "''largely deprive the Directive of its effect''” and "''to ensure effective and complete protection of data subjects''”.<ref>CJEU, 13 May 2014, Google Spain, C‑131/12, margin numbers 30 and 34 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=91583).</ref>
  
In [[CJEU - C-230/14 - Weltimmo]], the Court stated with regard to Directive 95/46/EC that "''<nowiki/>'in the context of the activities of an establishment’ cannot be interpreted restrictively''".<ref>C-230/14,Weltimmo, 1 October 2015, paragraph 25.</ref>
+
In CJEU - C-230/14 - Weltimmo, the Court stated with regard to Directive 95/46/EC that "''<nowiki/>'in the context of the activities of an establishment’ cannot be interpreted restrictively''".<ref>CJEU, 1 October 2015, Weltimmo, C-230/14, margin number 25 (available here <nowiki>https://curia.europa.eu/juris/document/document.jsf?text=&docid=168944&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=91583</nowiki>).</ref>
  
In [[CJEU - C-210/16 - Wirtschaftsakademie Schleswig-Holstein]], the Court stated with regard to Directive 95/46/EC that processing carried out in the context of the activities of the controller’s establishment “''cannot be interpreted restrictively''”<ref>C-210/16, Wirtschaftsakademie, 5 June 2018, paragraph 56.</ref> and that processing “''does not require that such processing be carried out ‘by’ the establishment concerned itself, but only that it be carried out ‘in the context of the activities of’ the establishment''”.<ref>C-210/16, Wirtschaftsakademie, 5 June 2018, paragraph 57.</ref>
+
In CJEU - C-210/16 - Wirtschaftsakademie Schleswig-Holstein, the Court stated with regard to Directive 95/46/EC that processing carried out in the context of the activities of the controller’s establishment “''cannot be interpreted restrictively''” and that processing “''does not require that such processing be carried out ‘by’ the establishment concerned itself, but only that it be carried out ‘in the context of the activities of’ the establishment''”.<ref>CJEU, 5 June 2018, Wirtschaftsakademie Schleswig-Holstein, C‑210/16, margin numbers 56 and 57 (available here <nowiki>https://curia.europa.eu/juris/document/document.jsf?text=&docid=202543&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=91583</nowiki>).</ref>
  
At the same time, the EDPB has stated that the requirement "''should not be interpreted too broadly to conclude that the existence of any presence in the EU with even the remotest links to the data processing activities of a non-EU entity will be sufficient to bring this processing within the scope of EU data protection law''".<ref>EDPB guidelines 3/2018 on the territorial scope of the GDPR, Version 2.1, 12 November 2019, p. 7.</ref> The EDPB suggests that (i) the relationship between a data controller or processor outside the Union and its local establishment in the Union and (ii) revenue raising in the Union by a local establishment may help in determining whether processing by a non-EU entity occurs in the context of its establishment in the Union.<ref>EDPB guidelines 3/2018 on the territorial scope of the GDPR, Version 2.1, 12 November 2019, p. 8.</ref>
+
At the same time, the EDPB has stated that the requirement "''should not be interpreted too broadly to conclude that the existence of any presence in the EU with even the remotest links to the data processing activities of a non-EU entity will be sufficient to bring this processing within the scope of EU data protection law''".<ref>EDPB, Guidelines 03/2018 on the territorial scope of the GDPR (Article 3), 12 November 2019, p. 7.</ref> The EDPB suggests that (i) the relationship between a data controller or processor outside the Union and its local establishment in the Union and (ii) revenue raising in the Union by a local establishment may help in determining whether processing by a non-EU entity occurs in the context of its establishment in the Union.<ref>EDPB guidelines 3/2018 on the territorial scope of the GDPR, Version 2.1, 12 November 2019, p. 8.</ref>
  
The location of the processing itself is irrelevant to determine the geographical scope of Article 3(1). As explained by the EDPB, geographical location is only relevant to answer whether a controller or processor is established inside or outside the Union and whether a non-EU controller or processor has an establishment in the Union.<ref>EDPB guidelines 3/2018 on the territorial scope of the GDPR, Version 2.1, 12 November 2019, p. 10.</ref>
+
The location of the processing itself is irrelevant to determine the geographical scope of Article 3(1) GDPR. As explained by the EDPB, geographical location is only relevant to answer whether a controller or processor is established inside or outside the Union and whether a non-EU controller or processor has an establishment in the Union.<ref>EDPB, Guidelines 03/2018 on the territorial scope of the GDPR (Article 3), 12 November 2019, p. 10.</ref>
  
===Targeting the Union market (Article 3(2))===
+
===(2) Targeting the Union Market===
If the controller or the processor is not established in the Union, the GDPR can be triggered if personal data of data subjects located in the Union is being processed. In light of Recital 14 and as supported by the EDPB guidelines,<ref>EDPB guidelines 3/2018 on the territorial scope of the GDPR, Version 2.1, 12 November 2019, p. 14.</ref> targeting criterion is neither limited by residence nor nationality, but covers any natural person located in the Union to the extent that they are subject to processing as described in Article 3(2)(a) and (b).
+
If the controller or the processor is not established in the Union, the GDPR can be triggered if personal data of data subjects located in the Union is being processed. In light of Recital 14 GDPR and as supported by the EDPB guidelines, targeting criterion is neither limited by residence nor nationality, but covers any natural person located in the Union to the extent that they are subject to processing as described in Article 3(2)(a) and (b).<ref>EDPB, Guidelines 03/2018 on the territorial scope of the GDPR (Article 3), 12 November 2019, p. 14.</ref>
====(a) Offering of goods or services====
+
====(a) Offering of Goods or Services====
The concept of "''goods and services''" has been clarified in EU law (such as [https://eur-lex.europa.eu/eli/dir/2006/123/oj Directive 2006/123/EC on services in the internal market]) and case law, ''inter alia'' on the interpretation of Articles 28 to 37 and 56 to 62 [https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT TFEU].  
+
The concept of "''goods and services''" has been clarified in EU law (such as [https://eur-lex.europa.eu/eli/dir/2006/123/oj Directive 2006/123/EC on services in the internal market]) and case law, ''inter alia'' on the interpretation of [https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT Articles 28 to 37 and 56 to 62 TFEU].  
  
“''Goods''” are products which can be valued in money and which are capable, as such, of forming the subject of commercial and lawful transactions.<ref> Eg: C-7/68 European Commission v. Italy, 10 December 1968; C-50/80 Horvath, 5 February 1981; C-421/09 Humanplasma, 9 December 2010.</ref>
+
“''Goods''” are products which can be valued in money and which are capable, as such, of forming the subject of commercial and lawful transactions.<ref> E.g. CJEU, 10 December 1968, Commission v Italy, C-7/68 (available here https://curia.europa.eu/juris/showPdf.jsf?text=&docid=87685&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=91583); CJEU, 5 February 1981, Horvath, C-7/68 (available here https://curia.europa.eu/juris/showPdf.jsf?text=&docid=90857&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=91583); CJEU, 9 December 2010, Humanplasma, C‑421/09 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=83855&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=91583).</ref>
  
“''Services''” are activities agreed upon by the provider and the recipient in exchange for, typically, remuneration.<ref> Eg C-263/86 Humbel, 27 September 1988.</ref> In addition, the service provider must be independent and pursue its activity on a stable and continuous basis.<ref> Eg. C-55/94 Gebhard, 20 November 1995.</ref> This definition includes “''any Information Society service, that is to say, any service normally provided for remuneration, at a  distance, by electronic means and at the individual request of a recipient of services''”,<ref>[https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A32015L1535U Article 1(1)(b) of Directive 2015/1535/EU].</ref> as also supported by the EDPB.<ref>EDPB guidelines 3/2018 on the territorial scope of the GDPR, Version 2.1, 12 November 2019, p.16 referring to Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services.</ref>  
+
“''Services''” are activities agreed upon by the provider and the recipient in exchange for, typically, remuneration.<ref> E.g. CJEU, 27 September 1988, Humbel and Edel, C-263/86 (available here https://curia.europa.eu/juris/showPdf.jsf?text=&docid=94935&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=91583).</ref> In addition, the service provider must be independent and pursue its activity on a stable and continuous basis.<ref> E.g. CJEU, 30 November 1995, Gebhard, C-55/94 (available here https://curia.europa.eu/juris/showPdf.jsf?text=&docid=99599&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=91583).</ref> This definition includes “''any Information Society service, that is to say, any service normally provided for remuneration, at a  distance, by electronic means and at the individual request of a recipient of services''”,<ref>[https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A32015L1535U Article 1(1)(b) of Directive 2015/1535/EU].</ref> as also supported by the EDPB.<ref>EDPB, Guidelines 03/2018 on the territorial scope of the GDPR (Article 3), 12 November 2019, p. 16 referring to [https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A32015L1535U Directive (EU) 2015/1535] of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services.</ref>  
  
 
The processing is covered "''irrespective of whether a payment of the data subject is required''".  
 
The processing is covered "''irrespective of whether a payment of the data subject is required''".  
  
====(b) The monitoring of data subjects' behaviour====
+
====(b) The Monitoring of Data Subjects' Behaviour====
Processing related to the monitoring of the behaviour of data subject is not defined in the GDPR. Recital 24 clarifies that <blockquote>“''[i]n order to determine whether a processing activity can be considered to monitor the behaviour of data subjects, it should be ascertained whether natural persons are tracked on the internet including potential subsequent use of personal data processing techniques which consist of profiling a natural person, particularly in order to take decisions concerning her or him or for analysing or predicting her or his personal preferences, behaviours and attitudes.''”</blockquote>
+
Processing related to the monitoring of the behaviour of data subject is not defined in the GDPR. Recital 24 GDPR clarifies that <blockquote>“''[i]n order to determine whether a processing activity can be considered to monitor the behaviour of data subjects, it should be ascertained whether natural persons are tracked on the internet including potential subsequent use of personal data processing techniques which consist of profiling a natural person, particularly in order to take decisions concerning her or him or for analysing or predicting her or his personal preferences, behaviours and attitudes.''”</blockquote>
  
===The public international law criterion (Article 3(3))===
+
===(3) The Public International Law Criterion===
  
 
The GDPR applies to the processing of personal data by a controller not established in the Union if the Member State’s legislation applies by virtue of public international law.
 
The GDPR applies to the processing of personal data by a controller not established in the Union if the Member State’s legislation applies by virtue of public international law.
  
Recital 25 gives the example of processing taking place in a “''Member State’s diplomatic mission or consular post''”. The EDPB gives as a further example the case of a German cruise ship travelling in international waters. By virtue of public international law, the GDPR will apply even though the ship is in international waters.<ref>EDPB, guidelines 3/2018 on the territorial scope of the GDPR, versions 2.1., 12 Novembre 2019, p. 23.</ref>
+
Recital 25 GDPR gives the example of processing taking place in a “''Member State’s diplomatic mission or consular post''”. The EDPB gives as a further example the case of a German cruise ship traveling in international waters. By virtue of public international law, the GDPR will apply even though the ship is in international waters.<ref>EDPB, Guidelines 03/2018 on the territorial scope of the GDPR (Article 3), 12 November 2019, p. 23.</ref>
  
 
==Decisions==
 
==Decisions==

Latest revision as of 12:48, 15 September 2021

Article 3: Territorial scope
Gdpricon.png
Chapter 10: Delegated and implementing acts

Legal Text[edit | edit source]

Article 3 - Territorial scope

1. This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.

2. This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to:

(a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or
(b) the monitoring of their behaviour as far as their behaviour takes place within the Union.

3. This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law.


Relevant Recitals[edit | edit source]

Recital 14: Not Applicable to Legal Persons
The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data. This Regulation does not cover the processing of personal data which concerns legal persons and in particular undertakings established as legal persons, including the name and the form of the legal person and the contact details of the legal person.

Recital 22: Processing Activities by an Establishment
Any processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union should be carried out in accordance with this Regulation, regardless of whether the processing itself takes place within the Union. Establishment implies the effective and real exercise of activity through stable arrangements. The legal form of such arrangements, whether through a branch or a subsidiary with a legal personality, is not the determining factor in that respect.

Recital 23: Applicable if Targeting EU Data Subjects
In order to ensure that natural persons are not deprived of the protection to which they are entitled under this Regulation, the processing of personal data of data subjects who are in the Union by a controller or a processor not established in the Union should be subject to this Regulation where the processing activities are related to offering goods or services to such data subjects irrespective of whether connected to a payment. In order to determine whether such a controller or processor is offering goods or services to data subjects who are in the Union, it should be ascertained whether it is apparent that the controller or processor envisages offering services to data subjects in one or more Member States in the Union. Whereas the mere accessibility of the controller's, processor's or an intermediary's website in the Union, of an email address or of other contact details, or the use of a language generally used in the third country where the controller is established, is insufficient to ascertain such intention, factors such as the use of a language or a currency generally used in one or more Member States with the possibility of ordering goods and services in that other language, or the mentioning of customers or users who are in the Union, may make it apparent that the controller envisages offering goods or services to data subjects in the Union.

Recital 24: Applicable if Monitoring EU Data Subjects
The processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union should also be subject to this Regulation when it is related to the monitoring of the behaviour of such data subjects in so far as their behaviour takes place within the Union. In order to determine whether a processing activity can be considered to monitor the behaviour of data subjects, it should be ascertained whether natural persons are tracked on the internet including potential subsequent use of personal data processing techniques which consist of profiling a natural person, particularly in order to take decisions concerning her or him or for analysing or predicting her or his personal preferences, behaviours and attitudes.

Recital 25: Applicable When Member State Law is Applicable
Where Member State law applies by virtue of public international law, this Regulation should also apply to a controller not established in the Union, such as in a Member State's diplomatic mission or consular post.

Recital 80: Designated Representative
Where a controller or a processor not established in the Union is processing personal data of data subjects who are in the Union whose processing activities are related to the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union, or to the monitoring of their behaviour as far as their behaviour takes place within the Union, the controller or the processor should designate a representative, unless the processing is occasional, does not include processing, on a large scale, of special categories of personal data or the processing of personal data relating to criminal convictions and offences, and is unlikely to result in a risk to the rights and freedoms of natural persons, taking into account the nature, context, scope and purposes of the processing or if the controller is a public authority or body. The representative should act on behalf of the controller or the processor and may be addressed by any supervisory authority. The representative should be explicitly designated by a written mandate of the controller or of the processor to act on its behalf with regard to its obligations under this Regulation. The designation of such a representative does not affect the responsibility or liability of the controller or of the processor under this Regulation. Such a representative should perform its tasks according to the mandate received from the controller or processor, including cooperating with the competent supervisory authorities with regard to any action taken to ensure compliance with this Regulation. The designated representative should be subject to enforcement proceedings in the event of non-compliance by the controller or processor.

Recital 122: Competence of Supervisory Authorities
Each supervisory authority should be competent on the territory of its own Member State to exercise the powers and to perform the tasks conferred on it in accordance with this Regulation. This should cover in particular the processing in the context of the activities of an establishment of the controller or processor on the territory of its own Member State, the processing of personal data carried out by public authorities or private bodies acting in the public interest, processing affecting data subjects on its territory or processing carried out by a controller or processor not established in the Union when targeting data subjects residing on its territory. This should include handling complaints lodged by a data subject, conducting investigations on the application of this Regulation and promoting public awareness of the risks, rules, safeguards and rights in relation to the processing of personal data.

Commentary on Article 3[edit | edit source]

(1) Controller or Processor Established in the Union[edit | edit source]

The GDPR does not define the term "establishment." Recital 22 states that:

[e]stablishment implies the effective and real exercise of activity through stable arrangements. The legal form of such arrangements, whether through a branch or a subsidiary with a legal personality, is not the determining factor in that respect”.

This very closely resembles the CJEU - C-230/14 - Weltimmo case, according to which an establishment extends “to any real and effective activity — even a minimal one — exercised through stable arrangements”.[1] In its guidelines, the EDPB reminded that the wording was not new as it was identical to Recital 19 of Directive 95/46/EC.[2] It also pointed out that although the threshold for “stable arrangement” is quite low in the context of online activities and that the notion of “establishment” is broad, it cannot lead to the conclusion that a “non-EU entity has an establishment in the Union merely because the undertaking’s website is accessible in the Union”.[3]

The meaning of “in the context of the activities” has to be interpreted broadly, as confirmed by judgments of the CJEU:

In CJEU - C-131/12 - Google Spain the Court determined with regard to Directive 95/46/EC that the activity of a search engine is to be classified as “processing of personal data”. It found that

inasmuch as the data processing carried out in the context of the activity of a search engine can be distinguished from and is additional to that carried out by publishers of websites and affects the data subject’s fundamental rights additionally, the operator of the search engine as the controller in respect of that processing must ensure, within the framework of its responsibilities, powers and capabilities, that that processing meets the requirements of Directive 95/46, in order that the guarantees laid down by the directive may have full effect”.[4]

The Court explained that both terms “processing” and “controller” must be interpreted broadly as to not "largely deprive the Directive of its effect” and "to ensure effective and complete protection of data subjects”.[5]

In CJEU - C-230/14 - Weltimmo, the Court stated with regard to Directive 95/46/EC that "'in the context of the activities of an establishment’ cannot be interpreted restrictively".[6]

In CJEU - C-210/16 - Wirtschaftsakademie Schleswig-Holstein, the Court stated with regard to Directive 95/46/EC that processing carried out in the context of the activities of the controller’s establishment “cannot be interpreted restrictively” and that processing “does not require that such processing be carried out ‘by’ the establishment concerned itself, but only that it be carried out ‘in the context of the activities of’ the establishment”.[7]

At the same time, the EDPB has stated that the requirement "should not be interpreted too broadly to conclude that the existence of any presence in the EU with even the remotest links to the data processing activities of a non-EU entity will be sufficient to bring this processing within the scope of EU data protection law".[8] The EDPB suggests that (i) the relationship between a data controller or processor outside the Union and its local establishment in the Union and (ii) revenue raising in the Union by a local establishment may help in determining whether processing by a non-EU entity occurs in the context of its establishment in the Union.[9]

The location of the processing itself is irrelevant to determine the geographical scope of Article 3(1) GDPR. As explained by the EDPB, geographical location is only relevant to answer whether a controller or processor is established inside or outside the Union and whether a non-EU controller or processor has an establishment in the Union.[10]

(2) Targeting the Union Market[edit | edit source]

If the controller or the processor is not established in the Union, the GDPR can be triggered if personal data of data subjects located in the Union is being processed. In light of Recital 14 GDPR and as supported by the EDPB guidelines, targeting criterion is neither limited by residence nor nationality, but covers any natural person located in the Union to the extent that they are subject to processing as described in Article 3(2)(a) and (b).[11]

(a) Offering of Goods or Services[edit | edit source]

The concept of "goods and services" has been clarified in EU law (such as Directive 2006/123/EC on services in the internal market) and case law, inter alia on the interpretation of Articles 28 to 37 and 56 to 62 TFEU.

Goods” are products which can be valued in money and which are capable, as such, of forming the subject of commercial and lawful transactions.[12]

Services” are activities agreed upon by the provider and the recipient in exchange for, typically, remuneration.[13] In addition, the service provider must be independent and pursue its activity on a stable and continuous basis.[14] This definition includes “any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services”,[15] as also supported by the EDPB.[16]

The processing is covered "irrespective of whether a payment of the data subject is required".

(b) The Monitoring of Data Subjects' Behaviour[edit | edit source]

Processing related to the monitoring of the behaviour of data subject is not defined in the GDPR. Recital 24 GDPR clarifies that

[i]n order to determine whether a processing activity can be considered to monitor the behaviour of data subjects, it should be ascertained whether natural persons are tracked on the internet including potential subsequent use of personal data processing techniques which consist of profiling a natural person, particularly in order to take decisions concerning her or him or for analysing or predicting her or his personal preferences, behaviours and attitudes.

(3) The Public International Law Criterion[edit | edit source]

The GDPR applies to the processing of personal data by a controller not established in the Union if the Member State’s legislation applies by virtue of public international law.

Recital 25 GDPR gives the example of processing taking place in a “Member State’s diplomatic mission or consular post”. The EDPB gives as a further example the case of a German cruise ship traveling in international waters. By virtue of public international law, the GDPR will apply even though the ship is in international waters.[17]

Decisions[edit | edit source]

→ You can find all related decisions in Category:Article 3 GDPR

References[edit | edit source]

  1. CJEU, 1 October 2015, Weltimmo, C-230/14, margin number 31 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=168944&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=91583).
  2. EDPB, Guidelines 03/2018 on the territorial scope of the GDPR (Article 3), 12 November 2019, p. 8.
  3. CJEU, 28 July 2016, Verein für Konsumenteninformation, C‑191/15, margin number 76 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=182286&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=91583).
  4. CJEU, 13 May 2014, Google Spain, C‑131/12, margin number 83 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=91583).
  5. CJEU, 13 May 2014, Google Spain, C‑131/12, margin numbers 30 and 34 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=91583).
  6. CJEU, 1 October 2015, Weltimmo, C-230/14, margin number 25 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=168944&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=91583).
  7. CJEU, 5 June 2018, Wirtschaftsakademie Schleswig-Holstein, C‑210/16, margin numbers 56 and 57 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=202543&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=91583).
  8. EDPB, Guidelines 03/2018 on the territorial scope of the GDPR (Article 3), 12 November 2019, p. 7.
  9. EDPB guidelines 3/2018 on the territorial scope of the GDPR, Version 2.1, 12 November 2019, p. 8.
  10. EDPB, Guidelines 03/2018 on the territorial scope of the GDPR (Article 3), 12 November 2019, p. 10.
  11. EDPB, Guidelines 03/2018 on the territorial scope of the GDPR (Article 3), 12 November 2019, p. 14.
  12. E.g. CJEU, 10 December 1968, Commission v Italy, C-7/68 (available here https://curia.europa.eu/juris/showPdf.jsf?text=&docid=87685&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=91583); CJEU, 5 February 1981, Horvath, C-7/68 (available here https://curia.europa.eu/juris/showPdf.jsf?text=&docid=90857&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=91583); CJEU, 9 December 2010, Humanplasma, C‑421/09 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=83855&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=91583).
  13. E.g. CJEU, 27 September 1988, Humbel and Edel, C-263/86 (available here https://curia.europa.eu/juris/showPdf.jsf?text=&docid=94935&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=91583).
  14. E.g. CJEU, 30 November 1995, Gebhard, C-55/94 (available here https://curia.europa.eu/juris/showPdf.jsf?text=&docid=99599&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=91583).
  15. Article 1(1)(b) of Directive 2015/1535/EU.
  16. EDPB, Guidelines 03/2018 on the territorial scope of the GDPR (Article 3), 12 November 2019, p. 16 referring to Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services.
  17. EDPB, Guidelines 03/2018 on the territorial scope of the GDPR (Article 3), 12 November 2019, p. 23.