Article 44 GDPR
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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.
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The general conditions for the transfer of personal data to countries outside the EU/EEA ("third countries") and international organisations are laid down in Article 44 GDPR. Two steps have to be taken for the lawfulness of such data transfers.
(1) Since a 'transfer' of personal data is a 'processing', the first condition is the general compliance with the provisions of the GDPR. This includes the requirement of a legal basis according to Art. 6 GDPR and the fulfillment of the principles in Art. 5 GDPR.
(2) The second condition considers the situation that in countries outside the EU/EEA the GDPR does not apply. The protection in the EU shall not be undermined by a transfer to a third country, Therefore, additional obligations have to be met to ensure the protection of the personal data being subject to a data transfer. These specific conditions can be found in chapter five. According to chapter five, a transfer of personal data is only allowed, if the third country offers a data protection level that is adequate to the level of data protection in the EU or an exception applies. The requirements for an adequate data protection level in the third country are described in Art. 45 et. seq.
1. Material Scope
Article 44 of the General Data Protection Regulation (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 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.
Article 44 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 old 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 far reaching decisions by the CJEU on international transfers recently. Instead, he argues that the Schrems I goes much further than Bodil Lindqvist, 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 Directive). Similarly (and unfortunately), it also failed not define the word in the 2020 Schrems II judgment (under the GDPR).
1.2 Onwards transfers
Article 44 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). 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”.
1.2 Concerned entities
When discussing international data transfers, there are exporters of data and importers of data.
1.2.1 Exporter: Data controllers and processors
It is clear from Article 44 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 refered to as exporters.
1.2.2 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 clarifies that Chapter V also applies to international organisations that received personal data transfere 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.
Recital 102 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.
2. General requirements for transfers
Article 44 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 and the rest of Chapter V of the GDPR. However, the Schrems II judgment clarifies that Chapter V must be “read in light of[M1] ” the General Principles outlined in Article 44. Therefore, the following three requirements are applicable to the whole of Chapter V.
2.1 “Subject to the other provisions of this Regulation”
The phrase “subject to the other provisions of this Regulation” in Article 44 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 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), Article 14(1)(f), Article 15(1)(c) and Article 15(2) GDPR, make specific reference to transfers of personal data to third countries or international organisations.
2.2 Compliance with the conditions laid down in Chapter V
The second requirement outlined in Article 44 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.
2.3 Level of protection of natural persons guaranteed
The final requirement outlined in Article 44 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 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 (Article 25 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) 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. 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.
 Case C-101/01, Bodil Lindqvist  ECR I-12971, para 56.
 Ibid para 68-69.
 Kuner (n1) 762.
 Case C-362/14, Maximillian Schrems v Data Protection Commissioner  ECLI:EU:C:2015:650
 Kuner (n1) 763.
 Schrems v DPC (n7).
 Case C-311/18, Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems  ECLI:EU:C:2020:559.
 Kuner (n1) 763.
 ibid 763-764.
 EDPB, “Recommendations 1/2020 on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data”, adopted on 10 November 2020, 7.
 DPC v Facebook Ireland Ltd and Maximillian Schrems (n10) para 92.
 See Recital 101: “In any event, transfers to third countries and international organisations may only be carried out in full compliance with this Regulation”.
 Kuner (n1) 757.
 EDPB (n13) 7.
 Kuner (n1) 757.
 Schrems v DPC (n7) para 73.
 DPC v Facebook Ireland Ltd and Maximillian Schrems (n10) para 105.
 Ibid para 94.
 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”, adopted on 15 December 2020 after public consultation, v2.0, 7.
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