Article 44 GDPR

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Article 44 - General principle for transfers
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Chapter 10: Delegated and implementing acts

Legal Text


Article 44 - General principle for transfers

Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country or to an international organisation shall take place only if, subject to the other provisions of this Regulation, the conditions laid down in this chapter are complied with by the controller and processor, including for onward transfers of personal data from the third country or an international organisation to another third country or to another international organisation. All provisions in this chapter shall be applied in order to ensure that the level of protection of natural persons guaranteed by this Regulation is not undermined.

Relevant Recitals

Recital 6: Technological Transformation to Ensure a High Level of Protection
Rapid technological developments and globalisation have brought new challenges for the protection of personal data. The scale of the collection and sharing of personal data has increased significantly. Technology allows both private companies and public authorities to make use of personal data on an unprecedented scale in order to pursue their activities. Natural persons increasingly make personal information available publicly and globally. Technology has transformed both the economy and social life, and should further facilitate the free flow of personal data within the Union and the transfer to third countries and international organisations, while ensuring a high level of the protection of personal data.

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

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

Commentary

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

EDPB Guidelines: on this Article, and the rest of Chapter V, please see Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR

Transfers

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

Onwards Transfers

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

Subject to the other Provisions of this Regulation

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

Compliance with the Conditions laid down in Chapter V

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

Guaranteed Level of Protection of Natural Persons

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

Decisions

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

References

  1. EDPB, ‘Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR’, 18 November 2018 (Version for public consultation) (available here).
  2. Kuner, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 44 GDPR, p. 763 (Oxford University Press 2020).
  3. See Recital 101 GDPR: “In any event, transfers to third countries and international organisations may only be carried out in full compliance with this Regulation”.
  4. Kuner, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 44 GDPR, p. 757 (Oxford University Press 2020).
  5. EDPB, ‘Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR’, 18 November 2018 (Version for public consultation), p. 8 (available here).
  6. CJEU, Case C-311/18, Facebook Ireland and Schrems, 16 July 2020, margin number 92 (available here).
  7. CJEU, Case C-311/18, Facebook Ireland and Schrems, 16 July 2020, margin number 105 (available here). Along the same lines, EDPB, ‘Guidelines 2/2020 on articles 46 (2) (a) and 46 (3) (b) of Regulation 2016/679 for transfers of personal data between EEA and non-EEA public authorities and bodies’, 15 December 2020 (Version 2.0), pp. 6-7 (available here).
  8. Beck, in Wolff, Brink, BeckOK Datenschutrecht, Article 44 GDPR, margin number 46 (C.H. Beck 2020, 39th Edition).