Article 48 GDPR

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Article 48 - Transfers or disclosures not authorised by Union law
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Chapter 10: Delegated and implementing acts

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

Overview

Article 48 GDPR establishes conditions for recognizing and enforcing decisions of 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 recognized or enforced unless it is issued on the grounds of a valid international agreement between the relevant third country and the EU or a Member State.

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. 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.

Requirement to Transfer or Disclose Personal Data

This provision applies to situation where a court, tribunal or an administrative authority of a third country orders 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.

Basis of a Valid Recognition or Enforcement

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 a Member State. One of examples of such agreements is the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Convention”) that allows judicial authorities in one country to obtain evidence located in another one for use in judicial proceedings. Another example are transfers based on EU-US Agreement on the use and transfer of Passenger Name Records.

Relation to Other Grounds for Transfer

The transfers based on other provisions of Chapter V, such as adequacy decisions, standard contractual clauses and binding corporate rules do not fall within the scope of this article.

Decisions

Case C-362/14, Maximillian Schrems v Data Protection Commissioner, judgment of 6 October 2015 (Grand Chamber) (ECLJ;EU:C:2015:650).

→ You can find all related decisions in Category:Article 48 GDPR

References

Kuner, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 48 GDPR (Oxford University Press 2020).