Article 96 GDPR

From GDPRhub
Revision as of 12:50, 29 April 2022 by SR (talk | contribs) (→‎Commentary)
Article 96 - Relationship with previously concluded Agreements
Gdpricon.png
Chapter 10: Delegated and implementing acts

Legal Text


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

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 96 GDPR, 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. The provision refers to agreements concluded by a Member State with a third country prior to the adoption of the GDPR on 24 May 2016.[1] These agreements remain in force until amended, replaced or revoked. 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 its adoption. This includes primary legislation such as Article 16 TFEU, 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”. 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 then no longer be protected by Article 96 GDPR if it is found to be incompatible with other GDPR provisions.[2]

Decisions

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

References

  1. It follows that any international agreement concluded after that date does not fall within the scope of this provision. This provision “therefore concerns only a 'closed list' of international agreements already concluded by Member States before the adoption of the GDPR by the EU legislator”. 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. 1305-1306 (Oxford University Press 2020).