Article 48 GDPR

← Article 48 - Transfers or disclosures not authorised by Union law →
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 48 - Transfers or disclosures not authorised by Union law

Any judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State, without prejudice to other grounds for transfer pursuant to this Chapter.

Relevant Recitals

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.

Recital 115: Laws, Regulations and Other Legal Acts in Third Countries

Some third countries adopt laws, regulations and other legal acts which purport to directly regulate the processing activities of natural and legal persons under the jurisdiction of the Member States. This may include judgments of courts or tribunals or decisions of administrative authorities in third countries requiring a controller or processor to transfer or disclose personal data, and which are not based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State. The extraterritorial application of those laws, regulations and other legal acts may be in breach of international law and may impede the attainment of the protection of natural persons ensured in the Union by this Regulation. Transfers should only be allowed where the conditions of this Regulation for a transfer to third countries are met. This may be the case, inter alia, where disclosure is necessary for an important ground of public interest recognised in Union or Member State law to which the controller is subject.

Commentary

Whenever personal data processed in the EU are transferred or disclosed in response to a request from a third country authority, such transfer or disclosure is subject to the GDPR and constitutes a transfer in accordance with Chapter V of the GDPR. Accordingly, a legal basis under Article 6 GDPR is needed for the data processing as well as a ground for transfer under Chapter V.

Article 48 GDPR is meant to ensure that a third country cannot make an unilateral decision that leads to the systematic transfer of personal data from the Union to that third country.

While, according to the EDPB, Article 48 GDPR itself is not a ground for a transfer, it establishes conditions for recognising and enforcing decisions from third-country courts and administrative authorities in the EU. An ex-territorial judicial order to transfer or disclose personal data outside of the EU will not be recognised or enforced unless it is issued on the grounds of a valid international agreement between the relevant third country and the EU or Member State.

EDPB Guidelines: For this Article see EDPB, 'Guidelines 02/2024 on Article 48 GDPR’, 2. December 2024 (Version 1)(available here).

Judgment of a Court, Tribunal, or Administrative Authority of a Third Country

Article 48 GDPR relates only to binding orders issued by courts, tribunals or administrative authorities from third countries. Private enforcement, such as arbitral institutions, and orders issued within pre-trial proceedings, do not fall within this category. However, according to the EDPB, it makes no difference if the refusal to comply with the judgement or decision is subject to any adverse legal consequences or not.

It is also not applicable for data processing in the context of an activity outside EU law, or data processing by the Member States within the framework of the common foreign and security policy.

"Article 48 does not limit the purposes for which data may be requested by the third country authority. Thus, requests from third country authorities issued in different contexts and for different purposes would fall within the scope of the provision e.g. requests from law enforcement or national security authorities, financial regulators or public authorities responsible for approving pharmaceutical products."

EDPB, ‘Guidelines 02/2024 on Article 48 GDPR’, 2. December 2024 (Version 1), margin number 13.

Requiring [...] to Transfer or Disclose Personal Data

This provision applies to a situation where a court, tribunal or an administrative authority of a third country requires a controller or a processor to transfer or disclose personal data. The addressees of the decision should be subject to the GDPR or, in cases where they are not established in the EU, act within the material and territorial scope of the GDPR.

Enforcement Requires International Agreements or Mutual legal Assistance Treaties

According to Article 48 GDPR the above mentioned judgements and decisions "may only be recognised or enforceable in any manner, if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State".

Article 48 GDPR refers to international agreements or mutual legal assistance treaties that expressly cover the transfer of personal data. The conventions should be in force between the requesting third country, and the Union or Member State. An example of such agreements is the Hague Convention, that allows judicial authorities in one country to obtain evidence located in another for use in judicial proceedings. Another example are transfers based on the EU-US Agreement on the use and transfer of Passenger Name Records.

"Furthermore, this request from a third country authority may only be recognised or made enforceable if it is based on an international agreement, which may give such request the effect of a legal obligation to which the controller is subject and non-compliance would have legal consequences. "

EDPB, ‘Guidelines 02/2024 on Article 48 GDPR’, 2. December 2024 (Version 1), margin number 19.

Article 6(1)(c) in conjunction with Article 6(3) GDPR could be an appropriate legal basis if there is an applicable international agreement in place which provides for a legal obligation for the controller to transfer or disclose personal data. However, if the international agreement does not provide for a legal obligation for the controller, other legal bases under Article 6 could be applicable.

Without Prejudice to other Grounds for Transfer

It should be noted that Article 48 itself is not a ground for transfer. It only specifies circumstances under which third-country judgements and decisions cannot be recognised or enforced in the Union. Therefore, a controller or processor must identify a ground for the transfer in Chapter V GDPR (as well as a legal basis under Article 6 GDPR).

"Article 48 must be read in conjunction with Article 44, the general principle for transfers introducing the chapter. Article 44 lays down the following conditions for transfers under the GDPR: any transfer is subject to the other relevant provisions of the GDPR and complies with the conditions laid down in Chapter V (the two-step test)"

EDPB, ‘Guidelines 02/2024 on Article 48 GDPR’, 2. December 2024 (Version 1), margin number 27.

One such ground for a transfer could be a "legally binding and enforceable instrument between public authorities or bodies" in accordance with Article 46(2)(a) GDPR. Such an instrument could be international agreement in the sense of Article 48 GDPR.

According to the EDPB, the wording "without prejudice to other grounds for transfer pursuant to this Chapter" means that another Article 46(2)(a) GDPR cannot be an applicable ground for a data transfer under Chapter V. Also, if an international agreement provides for a legal basis but does not contain appropriate safeguards, Article 46(2)(a) GDPR is not applicable as a ground for the data transfer.

However, according to another opinion, Article 48 GDPR itself should be considered a ground for transfer under Chapter V GDPR.

Decisions

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