Article 96 GDPR

From GDPRhub
Revision as of 12:43, 13 August 2021 by SR (talk | contribs) (→‎Commentary)
(diff) ← Older revision | Latest revision (diff) | Newer revision → (diff)
Article 96 - Relationship with previously concluded Agreements
Gdpricon.png
Chapter 10: Delegated and implementing acts

Legal Text[edit | edit source]


Article 96 - Relationship with previously concluded Agreements


International agreements involving the transfer of personal data to third countries or international organisations which were concluded by Member States prior to 24 May 2016, and which comply with Union law as applicable prior to that date, shall remain in force until amended, replaced or revoked.

Relevant Recitals[edit | edit source]

102

Commentary[edit | edit source]

This provision does not affect agreements "involving the transfer of personal data to third countries or international organisations" concluded by a Member State with a third country prior to the adoption of the GDPR, i.e. on 24 May 2016. It follows that any international agreement concluded after that date does not fall within the scope of this provision. This issue now “therefore concerns only a 'closed list' of international agreements already concluded by Member States before the adoption of the GDPR by the EU legislator”.[1]

In order to benefit from this special legal "protection", the international agreement must "comply with Union law as applicable prior to that date" (24 May 2016). In other words, the parameter of legitimacy is not the GDPR but the law applicable in the European Union before 24 May 2016. This includes primary legislation such as Article 16 TFEU and Articles 7-8 and 47 of the Charter of Fundamental Rights of the European Union as well as Directive 95/46/EC. In the event that such verification is successful, the agreement will remain in force "notwithstanding any potential incompatibility with other provisions of the GDPR”.[2]

The above is true “until" the international agreement is "amended, replaced or revoked”. It follows that, where an agreement is replaced or revoked it will will then no longer be protected by Article 96 GDPR in the event that it is found to be incompatible with other provisions of the GDPR.[3]

Decisions[edit | edit source]

→ You can find all related decisions in Category:Article 96 GDPR

References[edit | edit source]

  1. Moore, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 96 GDPR, p. 1305 (Oxford University Press 2020).
  2. Moore, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 96 GDPR, p. 1305 (Oxford University Press 2020).
  3. Moore, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 96 GDPR, p. 1306 (Oxford University Press 2020), whose conclusion we share. We also believe, though, that Article 96 protection ceases in total even in case of simple amendments.