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Schrems II

The Court of Justice of the European Union ('CJEU') published, on 16 July 2020, its highly anticipated judgment ('the Judgment') in Data Protection Commissioner v. Facebook Ireland Limited, Maximillian Schrems (C-311/18) ('the Schrems II Case'). In particular, the CJEU declared the European Commission's EU-US Privacy Shield Decision invalid, and, whilst, the CJEU upheld the use of Standard Contractual Clauses ('SCCs'), it provided clarity around the considerations that organisations and authorities should bear in mind if utilised as the transfer mechanism of choice. OneTrust DataGuidance is committed to bringing you the latest information and regulatory know-how on what the judgment could mean, and will be continuing to update this page to bring together all the resources needed.

EDPB guidance and SCCs

The European Data Protection Board ('EDPB') announced, on 11 November 2020, that it had adopted recommendations on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data, as well as complementary recommendations on the European Essential Guarantees for surveillance measures during its 41st plenary session. These recommendations are now available for public consultation until 30 November 2020. On 12 November 2020, the European Commission launched a public consultation on a set of revised Standard Contractual Clauses ('SCCs'). For further information on these key new documents see:

How OneTrust Helps

OneTrust Schrems II ​Solutions help controllers and processors respond to the operational challenges posed by the Schrems II decision by helping organizations identify existing data transfers and mechanisms, offering pre-built templates to assess the validity of those relying on SCCs, and managing any required contract updates and vendor changes.

Privacy Shield
SCCS
BCRS, OTHER MECHANISMS, GENERAL

On 11 November 2020, the EDPB adopted two recommendations for public consultation:

  1. Recommendations 01/2020 on Measures that Supplement Transfer Tools to Ensure Compliance with the EU Level of Protection of Personal Data ('the Supplementary Measures Recommendations'); and
  2. Recommendations 02/2020 on the European Essential Guarantees for Surveillance Measures ('the EEGs Recommendations')

A six-step roadmap

Whilst upholding the validity of the use of Standard Contractual Clauses ('SCCs'), the CJEU highlighted that controllers and processors are under an obligation to 'verify, on a case-by-case basis and, where appropriate, in collaboration with the recipient of the data, whether the law of the third country of destination ensures adequate protection, under EU law, of personal data transferred pursuant to standard data protection clauses, by providing, where necessary, additional safeguards to those offered by those clauses.'

In order to assist organisations with their assessments of third countries, as well as the types of measures that may be taken (technical, organisational, and contractual), the EDPB's Supplementary Measures Recommendations provides a roadmap of steps that businesses can follow:

  1. Know your transfers
  2. Identify the transfer tools you are relying on
  3. Assess whether the Article 46 GDPR transfer tool you are relying on is effective in light of all circumstances of the transfer
  4. Adopt supplementary measures
  5. Procedural steps if you have identified effective supplementary measures
  6. Re-evaluate at appropriate intervals

Step one: Know your transfers

As a first step, the EDPB recommends that organisations undertake a data transfer mapping exercise, which can often be significantly complex, in order to understand exactly what data is being transferred, to which jurisdictions, and to which parties, including sub-processors and onward transfers.

The EDPB recalls that 'knowing your transfers is an essential first step to fulfil your obligations under the principle of accountability,' and that 'to gain full awareness of your transfers, you can build on the records of processing activities that you may be obliged to maintain as controller or processor under Article 30 of the GDPR.'

In addition, the EDPB also highlights the importance of the data minimisation principle, and ensuring that 'the data you transfer is adequate, relevant and limited to what is necessary in relation to the purposes for which it is transferred to and processed in the third country.'

Importantly, the EDPB also reminds organisations that remote access from third countries as well as storage of data through cloud services outside the EEA are considered to be data transfers.

Step two: Identify the transfer tools you are relying on

The EDPB goes on to discuss the need to identify the most appropriate mechanism, as provided by the GDPR, for the relevant transfer. These mechanisms include:

Adequacy decisions

The European Commission has the power to determine, on the basis of Article 45 of the GDPR whether a country outside the EU offers an adequate level of data protection. The EDPB highlights that the effect of such a decision is that personal data can flow from the EEA to that third country without any further safeguard being necessary.

The EDPB also notes, however, that organisations must monitor such decisions in case they are revoked, and that 'adequacy decisions do not prevent data subjects from filing a complaint. Nor do they prevent supervisory authorities from bringing a case before a national court if they have doubts about the validity of a decision, so that a national court can make a reference for a preliminary ruling to the CJEU for the purpose of examining that validity.'

The following jurisdictions have thus far been recognised as providing adequate protection for personal data (i.e. are party to an adequacy decision):

  • Andorra
  • Argentina
  • Canada (commercial organisations)
  • Faroe Islands
  • Guernsey
  • Israel
  • Isle of Man
  • Japan (private sector)
  • Jersey
  • New Zealand
  • Switzerland (under review)
  • Uruguay

Adequacy talks with South Korea are currently ongoing and discussions of a potential adequacy decision for the UK have been part of Brexit negotiations.

Article 46 GDPR transfer tools

These include:

  • SCCs
  • Binding Corporate Rules ('BCRs');
  • codes of conduct;
  • certification mechanisms; and
  • ad hoc contractual clauses.

The EDPB highlights that supplementary measures may still need to be adopted in order to ensure an essentially equivalent level of protection when utilising the transfer tools above (see step four below).

Derogations

In keeping with prior guidance issued on usage of the derogations provided for under Article 49 of the GDPR, the EDPB notes that these are of 'an exceptional nature', must be interpreted 'restrictively', and mainly relate to 'processing activities that are occasional and non-repetitive.'

If transfers cannot be legally based on an adequacy decision, nor on an Article 49 derogation, organisations need to move to step three of the EDPB's roadmap.

Step three: Assess whether the Article 46 GDPR transfer tool you are relying on is effective in light of all circumstances of the transfer

The EDPB emphasises that a transfer tool or mechanism under Article 46 of the GDPR may not be able to ensure ongoing adequate protection for personal data in and of itself. Therefore, an assessment must be conducted once an Article 46 tool has been selected in order to determine where and how such essentially equivalent protection can be guaranteed. The responsibility for this assessment largely resides with the data exporter.

The assessment should primarily focus on the laws, regulations, and practices of the recipient jurisdiction, and particularly whether there are any risks that may affect the safeguards of the Article 46 transfer tool, such as unrestricted access to personal data by public authorities. Where appropriate, the EDPB recommends that the data importer may be able to assist in conducting the assessment.

Transfer factors

Several factors are expected to be taken into account when conducting an assessment, including the nature of the transfer itself. For example, the EDPB highlights that the following should be considered:

  • all actors, such as processors or sub-processors, involved in the transfer;
  • purposes for which the data are transferred;
  • types of entities involved in the processing (public/private, controller/processor);
  • sector in which the transfer occurs (health, financial, etc.);
  • the categories of personal data transferred;
  • whether the data will be stored in the third country or if there is only remote access;
  • format of the data to be transferred (pseudonymised, encrypted, etc.); and
  • the possibility of onward transfers.

Assessing laws

The above transfer factors may have an impact on the legal context that will also need to be assessed. When analysing laws and regulations of a third country, the EDPB notes that consideration should be made as to whether:

  • commitments to data subject rights can continue to be effectively applied;
  • the safeguards of an Article 46 transfer tool can be effectively applied, including a right of redress for data subjects in case of access to their data by public authorities in the third country; and
  • there are effective limits on requirements to disclose or allow access to personal data by public authorities.

The EDPB stresses that EU standards must be used as a reference when conducting an assessment, and that the European Essential Guarantees for surveillance measures 'provide elements which have to be assessed to determine whether the legal framework governing access to personal data by public authorities in a third country, being national security agencies or law enforcement authorities, can be regarded as a justifiable interference (and therefore as not impinging on the commitments taken in the art 46 GDPR transfer tool) or not. In particular, this should be carefully considered when the legislation governing the access to data by public authorities is ambiguous or not publicly available.'

Furthermore, the EDPB advises that in some cases the relevant legislation may not be sufficient to provide required information. In such instances, the EDPB recommends that assessment is conducted on other relevant object factors with due diligence. These factors may include, for instance, reported precedents of public authorities accessing data.

Assessment outcomes

Where assessments find that essentially equivalent protection may not be provided it is the responsibility of the data exporter to utilise supplementary measures or to not transfer personal data.

Where assessments find that essentially equivalent protection is provided, re-evaluations and monitoring should continue to occur as described in step six.

Additional resources

Beyond the resources that may be provided by a data importer to assist in assessments, the EDPB suggests the following non-exhaustive list:

  • case-law of the CJEU and of the European Court of Human Rights ('ECtHR');
  • adequacy decisions in the country of destination if the transfer relies on a different legal basis;
  • resolutions and reports from intergovernmental organisations, such as the Council of Europe, other regional bodies, and UN bodies and agencies (e.g. UN Human Rights Council, Human Rights Committee);
  • national case-law or decisions taken by independent judicial or administrative authorities competent on data privacy and data protection of third countries; and
  • reports from academic institutions, and civil society organisations (e.g. NGOs and trade associations).

Step four: Adopt supplementary measures

Where a step three assessment indicates that essentially equivalent protection may not be maintained through the Article 46 transfer tool, additional supplementary measures should be considered. Such measures will need to be agreed with the data importer and be sufficient to provide essentially equivalent protection.

Supplementary measures should be considered on a case-by-case basis, be checked against the findings from steps one to three, and may include a combination of technical, organisational, or contractual measures. The EDPB highlights that 'contractual and organisational measures alone will generally not overcome access to personal data by public authorities of the third country (where this unjustifiably interferes with the data importer's obligations to ensure essential equivalence).' In such instances, the EDPB notes that technical measures may be of use to prevent access from public authorities and may work in conjunction with organisational and contractual measures.

Assessing supplementary measures

The EDPB notes that the following factors may be considered in collaboration with the data importer, where appropriate, in order to assess the most effective supplementary measures:

  • format of the data;
  • nature of the data;
  • length and complexity of data processing workflow (number of actors involved in the processing and their relationships); and
  • possibility that the data may be subject to onward transfers, within the same third country or to other third countries.

Examples of supplementary measures

The EDPB provides a detailed consideration of potential supplementary measures as well as conditions for their effectiveness in Annex 2 of its Recommendations. In relation to technical measures, the EDPB considers several use cases where such measures may or may not be effective. Within these use cases, the EDPB discusses, among other things, state-of-the-art encryption, appropriate handling of cryptographic keys, pseudonymisation, separating information, and thorough preparation against cryptanalysis.

The EDPB also examines additional contractual and organisational measures, including:

  • contractual obligations for technical measures, transparency, specific actions, or data subject rights;
  • internal governance policies, especially within enterprise groups;
  • accountability measures, such as transparency reports;
  • data minimisation;
  • adoption of standards and best practices;
  • regular reviews; and
  • data importer commitments.

The effectiveness of all of the above supplementary measures will need to be demonstrable, and the EDPB sets out specific conditions for this effectiveness. Whether any of these measures, alone or in combination, may be considered effective in providing essentially equivalent protection will be dependent on the specific case.

Outcomes

Measures are effective

Where supplementary measures are able to ensure essentially equivalent protection of personal data, the transfer should be viable. In some cases, in particular where there are modifications of SCCs, there may be further procedural requirements, as discussed in step five below.

Measures are not effective

Where supplementary measures are not able to ensure essentially equivalent protection of personal data transfers should not start on the basis of the Article 46 transfer tool being relied upon. Where a transfer has already started, it must be suspended or ended. Furthermore, the EDPB notes that, 'Pursuant to the safeguards contained in the Article 46 GDPR transfer tool you are relying on, the data that you have already transferred to that third country and the copies thereof should be returned to you or destroyed in their entirety by the importer.'

If an organisation chooses to continue the transfer, they should inform the competent supervisory authority as per the relevant requirements under Article 46 of the GDPR. The supervisory authority will then suspend or prohibit transfers it does not deem as providing essentially equivalent protection.

Step five: Procedural steps if you have identified effective supplementary measures

Depending which Article 46 transfer tool is selected, further procedural steps may be required. These specifically apply if SCCs, BCRs, or other ad-hoc contractual clauses are used.

SCCs

Unmodified

The EDPB notes that there is no requirement to seek authorisation from a competent supervisory authority when supplementary clauses or safeguards are being added to SCCs so long as the measures 'do not contradict, directly or indirectly, the SCCs and are sufficient to ensure that the level of protection guaranteed by the GDPR is not undermined'.

However, the EDPB also emphasises that it is the responsibility of the data exporter and importer to ensure that additional clauses, 'cannot be construed in any way to restrict the rights and obligations in the SCCs or in any other way to lower the level of data protection'. Furthermore, organisations should be able to demonstrate that protections are sufficient, that there are no relevant restrictions, and that clauses are not ambiguous.

In addition, the EDPB notes that competent supervisory authorities have the power to review these supplementary clauses.

Modified

Where the SCCs themselves are to be modified, or where supplementary measures directly or indirectly contradict the SCCs, authorisation must be sought from the competent supervisory authority.

BCRs

The EDPB highlights that the Schrems II judgment applies to other transfer tools under Article 46 of the GDPR as these are 'basically of contractual nature, so the guarantees foreseen and the commitments taken by the parties therein cannot bind third country public authorities.'

In relation to BCRs, the EDPB notes, 'The precise impact of the Schrems II judgment on BCRs is still under discussion. The EDPB will provide more details as soon as possible as to whether any additional commitments may need to be included in the BCRs in the WP256/257 referentials.'

The EDPB also outlines that data exporters and importers will need to assess whether there is essentially equivalent protection provided to personal data in third countries when utilising BCRs, and employ any supplementary measures where applicable.

Ad hoc contractual clauses

The EPDB comments similarly on ad hoc clauses as it does on BCRs, noting that the Schrems II judgement has an impact and that essentially equivalent protection should be ensured. The EPDB states, 'The precise impact of the Schrems II judgment on ad hoc clauses is still under discussion. The EDPB will provide more details as soon as possible.'

Step six: Re-evaluate at appropriate intervals

The EDPB highlights that that monitoring should be conducted on an 'ongoing basis'. Such monitoring should address any relevant developments in the third country and, where appropriate, may include collaboration with data importers.

Furthermore, the EDPB outlines that mechanisms should be in place to promptly suspend or end transfers where:

  • the importer has breached commitments; or
  • supplementary measures are no longer effective.

Role of European Essential Guarantees

The Schrems II judgement established a new threshold for data transfers to third countries from the EU. One of the key requirements involved in meeting this threshold is to ensure that a recipient third country provides an adequate, essentially equivalent, level of protection for personal data. In order to understand whether such protection can be maintained, data exporters, in collaboration with data importers where appropriate, are expected to conduct assessments of third countries' relevant legislation and practices.

The European Essential Guarantees ('EEGs') are referential standards identified after the Court of Justice of the European Union ('CJEU') judgment in Data Protection Commissioner v. Facebook Ireland Limited & Maximilian Schrems 2016/4809P ('Schrems I') as a means to ensure that national surveillance measures would not inappropriately impede upon the rights to privacy and the protection of personal data of citizens during international data transfers. The EDPB notes in its EEGs Recommendations that the EEGs, 'provide elements to examine, whether surveillance measures allowing access to personal data by public authorities in a third country, being national security agencies or law enforcement authorities, can be regarded as a justifiable interference or not.'

The EDPB stresses that although the EEGs may form part of the assessment of third country legislation for data transfers, they are not exclusive and do not constitute a complete list of what is necessary to demonstrate essentially equivalence in a jurisdiction. Furthermore, the EEGs overlap in their scope and should be assessed on an overall basis rather than separately.

The guarantees

The EDPB begins the EEGs Recommendations by considering relevant provisions of the Charter of Fundamental Rights of the EU ('the Charter'), and in particular that it cannot be justified for public authorities to further use personal data for surveillance measures beyond what is strictly necessary. Furthermore, the EPDB then goes on to analyse CJEU commentary on the Charter and the right to privacy. In so doing, the EDPB sets out the basis upon which the EEGs are established.

The EDPB specifies, 'Following the analysis of the jurisprudence, the EDPB considers that the applicable legal requirements to make the limitations to the data protection and privacy rights recognised by the Charter justifiable can be summarised in four European Essential Guarantees':

  • Guarantee A - Processing should be based on clear, precise and accessible rules
  • Guarantee B - Necessity and proportionality with regard to the legitimate objectives pursued need to be demonstrated
  • Guarantee C - An independent oversight mechanism should exist
  • Guarantee D - Effective remedies need to be available to the individual

Guarantee A

Guarantee A indicates that the applicable domestic legislation should ensure that processing is based on clear, precise and accessible rules, including the following:

  • precise, clear, and accessible legal basis, which includes;
    • clear and precise rules on scope and minimum safeguards;
    • categories of individuals potentially subject to surveillance;
    • limits on duration of measure;
    • procedure for examining, using and storing collected data;
    • precautions for communicating data to third parties;
  • actionable data subject rights;
  • law must indicate in what circumstances and under which conditions a measure providing for the processing of such data may be adopted; and
  • There should be foreseeability for the individual to allow effective protection against arbitrary interference and abuse risks.

Guarantee B

Guarantee B states that necessity and proportionality with regard to the legitimate objectives pursued need to be demonstrated in the applicable legislation.

In relation to the principle of proportionality, the EDPB notes that the assessment of the proportionality of limitations to rights to privacy consists of:

  • measuring the severity of the interference; and
  • verifying the importance of the public interest objective.

Furthermore, the EDPB highlights, 'In Schrems II, the CJEU has stressed that legislation of a third country which does not indicate any limitations on the power it confers to implement surveillance programmes for the purposes of foreign intelligence cannot ensure a level of protection essentially equivalent to that guaranteed by the Charter. Indeed, according to the case law, a legal basis which permits interference with fundamental rights must, in order to satisfy the requirements of the principle of proportionality, itself define the scope of the limitation on the exercise of the right concerned.'

The EDPB also addresses the principle of necessity and outlines that legislation should not authorise the retention of all personal data, or all electronic communications content, and as such should identify limits to the powers of public authorities to access and use such personal data. For example, the EDPB notes that, 'laws permitting public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life'.

Guarantee C

Guarantee C specifies that an effective, independent and impartial oversight system provided by a judge or another independent body, such as an administrative authority or a parliamentary body, should oversee any interference with the right to privacy.

The EDPB outlines some of the challenges of what constitutes independence. In addition, the EDPB highlights several factors that can be taken into considerations including, among other things:

  • measures for effective reviews;
  • openness to public scrutiny;
  • manner of appointment; and
  • legal status.

Guarantee D

Guarantee D refers to the availability of effective legal remedies for individuals to exercise their data subject rights, specifying that it should be necessary to notify individuals whose personal data has been collected or analysed, as far as the notification no longer poses a threat to the purposes of the interventions by the public authorities.

Regarding the effectiveness of a legal remedy, the EDPB outlines that such effectiveness is inextricably linked to the notification of a surveillance measure to the individual once surveillance has been completed. Nevertheless, where there is no notification, an effective remedy must still be provided.

The criteria for a court to be recognised as supplying sufficient redress possibilities includes if the court:

  • is an independent and impartial body;
  • has adopted rules of procedure;
  • includes members that hold or have held high judicial office or are experienced lawyers;
  • has no evidential burden to overcome in order to lodge an application with it;
  • has access to all relevant information during complaint examinations; and
  • has powers to remedy non-compliance.

However, an effective remedy might be provided by a court, tribunal, or non-judicial independent body which offers guarantees essentially equivalent to those required by Article 47 of the Charter.

Conclusion

The EDPB's EEGs Recommendations includes final remarks which highlight that the guarantees should be considered together, that they are subject to interpretation, and an assessment using the EEGs can only come to two conclusions: either the jurisdiction adheres to the EEGs, or it does not.

While the EEGs Recommendations are a referential standard, they include many key factors that are likely to suggest that transfers to a third country is of a high or lower risk. In particular, where an assessment suggests a third country does not meet the threshold of the EEGs, significant consideration will need to be made of the effectiveness of any supplementary measures.

Third Country Assessment

Schrems II - Third Country Assessment

  • There is a requirement in place.
  • Click to view information for additional detail.
  • There is no requirement in place.
    Applicable Law
  • Human rights law
  • Authority access law
  • Legal bases for access
  • Other limits on access
    Authority Functions
  • Authorities
  • Oversight mechanisms
  • Legal remedies data subjects
  • Legal remedies organisations
    title
  • Overseas subjects
  • International commitments
  • Further information
  • Argentina
  • Australia
  • Brazil
  • Canada Federal
  • China
  • Israel
  • Kenya
  • Nigeria
  • Norway
  • Russian Federation
  • Saudi Arabia
  • Switzerland
  • Ukraine
  • USA Federal

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Try Free

The below document is a copy of the draft revised SCCs released on 12 November 2020 for public consultation by the European Commission as separated by module. The four modules as defined by the Commission are:

  • Module 1: Controller to controller
  • Module 2: Controller to processor
  • Module 3: Processor to processor
  • Module 4: Processor to controller

SECTION I

Clause 1

Purpose and scope

(a)  The purpose of these standard contractual clauses (the Clauses) is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)1 [for the transfer of personal data to a third country].

(b)  Parties:

(i)  the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and

(ii)  the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via an intermediary entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”).

have agreed to these standard data protection clauses (hereinafter: “Clauses”).

(c)  These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1), and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to add or update information in the Annexes. This does not prevent the Parties from including the standard contractual clauses laid down in this Clauses in a wider contract, and to add other clauses or additional safeguards provided that they do not contradict, directly or indirectly, the standard contractual clauses or prejudice the fundamental rights or freedoms of data subjects. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of the Regulation (EU) 2016/679

(d)  These Clauses apply with respect to the transfer of personal data as specified in Clause 5 of Section I [Description of the Transfer(s)].

(e)  Annexes I, II and III form an integral part of these Clauses.

Clause 2

Third party beneficiaries

(a)  Data subjects may invoke and enforce these Clauses, as third party beneficiaries, against the data exporter and / or data importer, with the following exceptions:

(i)  Section I;

(ii)  Section II - Module One: Clause 1.5 (d) and Clause 1.9(b); Module Two: Clause 1.9(a), (c), (d) and (e); Module Three: Clause 1.1 and Clause 1.9(a), (c), (d) and (e); Module Four: Clause 1.1, Clause 1.2 and Clause 1.3;

(iii)  Section II, Clause 3.1 (c), (d) and (e);

(iv)  Section II, Clause 4;

(v)  Section II - Module One: Clause 7(a), (b); Modules Two and Three: Clause 7(a), (b);

(vi)  Section II, Clause 8;

(vii)  Section II, Clause 9;

(viii)  Section III, Clause 1 and Clause 3(a), (b).

(b)  Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 3

Interpretation

(a)  Where these Clauses use the terms defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b)  These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c)  These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 4

Hierarchy

In the event of a conflict between these Clauses and the provisions of any other agreement between the Parties existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 5

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purposes for which they are transferred, are specified in Annex I.B [Description of the transfer(s)].

Clause 6 - Optional

Docking clause

(a)  An entity that is not a Party to the Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer by completing Annex I.A [List of Parties], Annex I.B [Description of the transfer(s)] and Annex II [Technical and organisational measures].

(b)  Once Annex I.A. is completed and signed, the acceding entity shall be treated as a Party to these Clauses and shall have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c)  The acceding Party shall have no rights or obligations arising from the period prior to the date of signing Annex I.A.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 1

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able to satisfy its obligations under these Clauses.

1.1 Purpose

The data importer shall not process the personal data for any purposes that are incompatible with the specific purpose(s) of the transfer, as set out in Annex I.B. [Description of the transfer(s)], unless it has obtained the data subject’s prior consent.

1.2 Transparency

(a) In order to enable data subjects to effectively exercise their rights pursuant to Clause 5 of Section II, the data importer shall inform them, either directly or through the data exporter:

(i)  of its identity and contact details;

(ii)  where it intends to process the personal data received from the data exporter for a different purpose than the purpose(s) of the transfer pursuant to Annex I.B. [Description of the transfer(s)], of that different purpose;

(iii)  where it intends to disclose the personal data to any third party, of the identity of that third party and the purpose of such disclosure.

(b)  Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing such information proves impossible or would involve a disproportionate effort. In the latter case, the data importer shall, to the extent possible, make the information publicly available.

(c)  The Parties shall provide the data subject with a copy of the Clauses upon request. To the extent necessary to protect business secrets or other confidential information, the Parties may redact the text of the Annexes to these Clauses prior to sharing a copy, but shall provide a meaningful summary where otherwise the data subject would not be able to understand the content of the Annexes.

(d)  Subparagraphs (a) to (c) are notwithstanding the obligations of the data exporter under Articles 13 and 14 Regulation (EU) 2016/679, in particular to inform the data subject about the transfer of special categories of data.

1.3 Accuracy and data minimisation

(a)  The Parties shall ensure that the personal data is accurate and kept up to date, to the extent necessary having regard to the purpose(s) of processing. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.

(b)  If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.

(c)  The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in relation to the purpose(s) of processing.

1.4 Storage limitation

The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation2 of the data and all of its back-ups at the end of the retention period.

1.5 Security of processing

(a) The data importer and, during the transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the personal data, including protection against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (hereinafter “data breach”). In assessing the appropriate level of security, they shall take due account of the risks involved in the processing, the nature of the personal data and the nature, scope, context and purposes of processing, and in particular consider encryption during transmission and anonymisation or pseudonymisation where this does not prevent fulfilling the purpose of processing. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b)  The data importer shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c)  In the event of a data breach concerning personal data processed by the data importer, the data importer shall take appropriate measures to address the data breach, including measures to mitigate its possible adverse effects.

(d)  If a data breach is likely to result in significant adverse effects, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority within the meaning of Clause 9 of Section II [Supervision]. Such notification shall contain i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), ii) its likely consequences, iii) the measures taken or proposed to address the data breach and iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide the information at the same time, it may do so in phases without undue further delay.

(e)  In addition, in such cases, the data importer shall also, if necessary in cooperation with the data exporter, notify without undue delay the data subjects concerned of the data breach, together with the information referred to in subparagraph c), ii) to iv), unless this would involve disproportionate efforts.

(f)  The data importer shall document all relevant facts relating to the data breach, including its effects and any remedial action taken, and keep a record thereof.

1.6 Special categories of personal data

To the extent the transfer includes personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions or offences (hereinafter “special categories of data”), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may for instance include restricting personnel permitted to access the personal data, additional security measures (such as pseudonymisation) or additional restrictions with respect to further disclosure.

1.7 Onward transfers

The data importer shall not disclose the personal data to a third party located outside the European Union3 (hereinafter “onward transfer”) unless the third party is or agrees to be bound by these Clauses. Alternatively, an onward transfer by the data importer may only take place if:

(i)  the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation (EU) 2016/679 with respect to the processing in question;

(ii)  the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 Regulation (EU) 2016/679 that covers the onward transfer;

(iii)  the third party enters into an agreement with the data importer ensuring the same level of data protection as under these Clauses, and the data importer provides a copy of these safeguards to the data exporter; or

(iv)  the data importer has obtained the explicit consent of the data subject, after having informed him / her of the purpose(s) of the onward transfer, the identity of recipient(s) or categories of recipients and of the possible risks of such transfer to the data subject due to the lack of appropriate data protection safeguards for the onward transfer. In this case, the data importer shall inform the data exporter and, at the request of the data exporter, shall provide a copy of the information provided to the data subject.

Any disclosure may only take place subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

1.8 Processing under the authority of the data importer

The data importer shall ensure that any person acting under its authority, including a processor, does not process the data except on instructions from the data importer.

1.9 Documentation and compliance

(a)  The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities under its responsibility.

(b)  The data importer shall make such documentation available to the competent supervisory authority on request.

Clause 2

Local laws affecting compliance with the Clauses

(a)  The Parties warrant that they have no reason to believe that the laws in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) GDPR, are not in contradiction with the Clauses.

(b)  The Parties declare that in providing the warranty in paragraph a, they have taken due account in particular of the following elements:

(i)  the specific circumstances of the transfer, including the content and duration of the contract; the scale and regularity of transfers; the length of the processing chain, the number of actors involved and the transmission channels used; the type of recipient; the purpose of processing; the nature of the personal data transferred; any relevant practical experience with prior instances, or the absence of requests for disclosure from public authorities received by the data importer for the type of data transferred;

(ii)  the laws of the third country of destination relevant in light of the circumstances of the transfer, including those requiring to disclose data to public authorities or authorising access by such authorities, as well as the applicable limitations and safeguards;

(iii)  any safeguards in addition to those under these Clauses, including the technical and organisational measures applied during transmission and to the processing of the personal data in the country of destination.

(c)  The data importer warrants that, in carrying out the assessment under paragraph b), it has made best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d)  The parties agree to document the assessment under paragraph b) and make it available to the competent supervisory authority upon request.

(e)  The data importer agrees to promptly notify the data exporter if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws not in line with the requirements under paragraph a), including following a change of the laws in the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements under paragraph a).

(f)  Following a notification pursuant to paragraph e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under the Clauses, the data exporter shall promptly identify appropriate measures (such as, for instance, technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and / or data importer to address the situation, if appropriate in consultation with the [for Module Three: controller and] competent supervisory authority. If the data exporter decides to continue the transfer, based on its assessment that these additional measures will allow the data importer to fulfil its obligations under the Clauses, the data exporter shall forward the notification to the competent supervisory authority together with an explanation, including a description of the measures taken. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by [for Module Three: the controller or] the competent supervisory authority to do so. In this case, the data exporter shall inform the competent supervisory authority and shall be entitled to terminate the contract. In case the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the responsible Party, unless the Parties have agreed otherwise. When the contract is terminated pursuant to this Clause, Section III, Clause 1 (d) and (e) shall apply.

Clause 3

Obligations of the data importer in case of government access requests

3.1 Notification

(a) The data importer agrees to promptly notify the data exporter and, where possible, the data subject (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request by a public authority under the laws of the country of destination for disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided;

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

[For Module Three: The data exporter shall forward the notification to the controller.]

(b)  If the data importer is prohibited from notifying the data exporter and / or the data subject, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicate as much information and as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them upon request of the data exporter.

(c)  To the extent permissible under the laws of the country of destination, the data importer agrees to provide to the data exporter, in regular intervals for the duration of the contract, the greatest possible amount of relevant information on the requests received (in particular, number of requests, type of data requested, requesting authority or authorities, whether requests have been challenged and the outcome of such challenges, etc.). [For Module Three: The data exporter shall forward the information to the controller.]

(d)  The data importer agrees to preserve the information pursuant to paragraphs a) to c) for the duration of the contract and make it available to the competent supervisory authority upon request.

(e)  Paragraphs a) to c) are notwithstanding the obligation of the data importer pursuant to Clause 1 of Section III [Termination] to promptly inform the data exporter where it is unable to comply with these Clauses.

3.2 Review of legality and data minimisation

(a)  The data importer agrees to review, under the laws of the country of destination, the legality of the request for disclosure, notably whether it remains within the powers granted to the requesting public authority, and to exhaust all available remedies to challenge the request if, after a careful assessment, it concludes that there are grounds under the laws of the country of destination to do so. When challenging a request, the data importer shall seek interim measures with a view to suspend the effects of the request until the court has decided on the merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are notwithstanding the obligations of the data importer pursuant to Clause 2(e) of this Section.

(b)  The data importer agrees to document its legal assessment as well as any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make it available to the data exporter. It shall also make it available to the competent supervisory authority upon request.

(c)  The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

Clause 4

Use of sub-processors

Clause 5

Data subject rights

(a) The data importer shall deal with any inquiries and requests it receives from a data subject relating to the processing of his / her personal data and the exercise of his / her rights under these Clauses without undue delay. The data importer shall take appropriate measures to facilitate such inquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.

(b)  In particular, upon request by the data subject the data importer shall, free of charge, without undue delay and at the latest within one month7 of the receipt of the request:

(i)  provide confirmation to the data subject as to whether personal data concerning him / her is being processed and, where this is the case, provide a copy of the data relating to him / her as well as the information contained in Annex I, information on onward transfers and information on the right to lodge a complaint with the competent supervisory authority;

(ii)  rectify inaccurate or incomplete data concerning the data subject;

(iii)  erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third party beneficiary rights.

(c)  Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.

(d)  Where the data importer intends to make decisions based solely on the automated processing of the personal data transferred without human involvement (hereinafter “automated decisions”), which would produce legal effects concerning the data subject or similarly significantly affect him / her, it shall, when necessary in cooperation with the data exporter:

(i)  inform the data subject about the envisaged automated decision and the logic involved;

(ii)  implement suitable safeguards, at least by enabling the data subject to contest the automated decision, express his / her point of view and obtain review by a human being.

(e)  Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.

(f)  The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) GDPR.

(g)  If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and about the possibility of lodging a complaint with the competent supervisory authority and / or seeking judicial review.

Clause 6

Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints or requests. It shall promptly deal with any complaints or requests by a data subject.

[OPTION: The data importer agrees that the data subject may also lodge a complaint with [Insert name of an independent dispute resolution body]8 at no cost to the data subject. It shall inform the data subject, in the manner set out in paragraph a), of this additional redress mechanism and that (s)he is not required to make use of such additional redress mechanism, or follow a particular sequence in seeking redress.]

(a)  The Parties agree that if there is a dispute between a data subject and one of the Parties as regards compliance with these Clauses, they shall keep each other informed about such proceedings and, where appropriate, cooperate in resolving the issue in a timely fashion.

(b)  Where the dispute is not amicably resolved and the data subject invokes a third-party beneficiary right pursuant to Clause 2 of Section I, the data importer accepts the decision of the data subject to:

(i) lodge a complaint with the competent supervisory authority within the meaning of Clause 9 of Section II [Supervision];

(ii) refer the dispute to the competent courts within the meaning of Clause 3 of Section III [Choice of forum and jurisdiction].

(c) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) GDPR.

(d)  The data importer accepts to abide by a decision binding under the applicable EU / Member State law.

(e)  The data importer agrees that the choice made by the data subject will not prejudice his / her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 7

Liability

(a)  Each Party shall be liable to the other Party/ies for any material or non-material damages it causes the other Party/ies by any breach of these Clauses.

(b)  Liability as between the Parties is limited to actual damage suffered. Punitive damages are excluded.

(c)  Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that Party causes the data subject for any breach of the third party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter under the GDPR.

(d)  Where more than one Party is responsible for any damage caused to the data subject resulting from a breach of these Clauses, both Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against either of these Parties.

(e)  The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 8

Indemnification

(a)  The Parties agree that if one Party is held jointly and severally liable for a breach of these Clauses together with another Party, it is entitled to claim back as indemnification that part of the liability that corresponds to the other Party’s part of responsibility.

(b)  Indemnification is contingent upon the Party to be indemnified:

(i)  promptly notifying the other Party of a claim, and

(ii)  providing reasonable cooperation and assistance to the other Party in defence of such claim.

Clause 9

Supervision

(a)  The supervisory authority with responsibility for ensuring compliance by the data exporter with the GDPR as regards the data transfer, namely [Specify Supervisory Authority and Member State], shall act as competent supervisory authority. [Where the data exporter is not established in a Member State, but falls within the territorial scope of application of the GDPR according to its Article 3(2): The supervisory authority of the Member State where the data subjects whose personal data are transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, namely [Specify Member State], shall act as competent supervisory authority.]

(b)  The data importer agrees to submit itself to the jurisdiction of the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to inquiries, submit itself to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – FINAL PROVISIONS

Clause 1

Non-compliance with the Clauses and termination

(a)  The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b)  In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is notwithstanding Clause 2(f) of Section II.

(c)  The data exporter shall be entitled to terminate the contract where:

(i)  the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month,

(ii)  the data importer is in substantial or persistent breach of these Clauses, or

(iii)  the data importer fails to comply with a binding decision of a competent court or the competent supervisory authority regarding its obligations under these Clauses,

In this case, it shall inform the competent supervisory authority of such non- compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the responsible Party, unless the Parties have agreed otherwise.

(d)  Personal data that has already been transferred prior to the termination of the contract shall [for Modules One, Two and Three: at the choice of the data exporter immediately be returned to the data exporter or destroyed in their entirety. The same shall apply to any copies of the data] [for Module Four: be destroyed in their entirety, including any copy thereof]. The data importer shall certify the destruction of the data to the data exporter. These obligations are notwithstanding any requirements under local law applicable to the data importer that prohibits return or destruction of the personal data transferred. In that case, the data importer warrants that it will ensure, to the extent possible, the level of protection required by these Clauses and will only process the data to the extent and for as long as required under that local law.

(e)  Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) GDPR that covers the transfer of personal data to which these Clauses apply; or (ii) the GDPR becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under the GDPR.

Clause 2

Governing law

[OPTION 1: These Clauses shall be governed by the law of one of the Member States of the European Union, provided such law allows for third party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]

[OPTION 2 (for Module Two and Three): These Clauses shall be governed by the law of the Member State of the European Union where the data exporter is established. Where such law does not allow for third party beneficiary rights, they shall be governed by the law of another Member State of the European Union that allows for third party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]

Clause 3

Choice of forum and jurisdiction

(a)  Any dispute arising from these Clauses shall be resolved by the courts of a Member State of the European Union. The Parties agree to submit themselves to the jurisdiction of such courts.

(b)  The Parties agree that those shall be the courts of _____ (specify Member State).

(c)  Legal proceedings by a data subject against the data exporter and / or data importer may also be brought before the courts of the Member State where the data subject has his / her habitual residence.

SECTION I

Clause 1

Purpose and scope

(a)  The purpose of these standard contractual clauses (the Clauses) is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)1 [for the transfer of personal data to a third country].

(b)  Parties:

(i)  the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and

(ii)  the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via an intermediary entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”).

have agreed to these standard data protection clauses (hereinafter: “Clauses”).

(c)  These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1), and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to add or update information in the Annexes. This does not prevent the Parties from including the standard contractual clauses laid down in this Clauses in a wider contract, and to add other clauses or additional safeguards provided that they do not contradict, directly or indirectly, the standard contractual clauses or prejudice the fundamental rights or freedoms of data subjects. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of the Regulation (EU) 2016/679

(d)  These Clauses apply with respect to the transfer of personal data as specified in Clause 5 of Section I [Description of the Transfer(s)].

(e)  Annexes I, II and III form an integral part of these Clauses.

Clause 2

Third party beneficiaries

(a)  Data subjects may invoke and enforce these Clauses, as third party beneficiaries, against the data exporter and / or data importer, with the following exceptions:

(i)  Section I;

(ii)  Section II - Module One: Clause 1.5 (d) and Clause 1.9(b); Module Two: Clause 1.9(a), (c), (d) and (e); Module Three: Clause 1.1 and Clause 1.9(a), (c), (d) and (e); Module Four: Clause 1.1, Clause 1.2 and Clause 1.3;

(iii)  Section II, Clause 3.1 (c), (d) and (e);

(iv)  Section II, Clause 4;

(v)  Section II - Module One: Clause 7(a), (b); Modules Two and Three: Clause 7(a), (b);

(vi)  Section II, Clause 8;

(vii)  Section II, Clause 9;

(viii)  Section III, Clause 1 and Clause 3(a), (b).

(b)  Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 3

Interpretation

(a)  Where these Clauses use the terms defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b)  These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c)  These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 4

Hierarchy

In the event of a conflict between these Clauses and the provisions of any other agreement between the Parties existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 5

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purposes for which they are transferred, are specified in Annex I.B [Description of the transfer(s)].

Clause 6 - Optional

Docking clause

(a)  An entity that is not a Party to the Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer by completing Annex I.A [List of Parties], Annex I.B [Description of the transfer(s)] and Annex II [Technical and organisational measures].

(b)  Once Annex I.A. is completed and signed, the acceding entity shall be treated as a Party to these Clauses and shall have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c)  The acceding Party shall have no rights or obligations arising from the period prior to the date of signing Annex I.A.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 1

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able to satisfy its obligations under these Clauses.

1.1 Instructions

(a)  The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give further instructions regarding the data processing, within the framework the contract agreed with the data importer, throughout the duration of the contract, but such instructions shall always be documented.

(b)  The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

1.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B [Description of the transfer(s)].

1.3 Transparency

The Parties shall provide the data subject with a copy of the Clauses upon request. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II, the Parties may redact the text of the Annexes to these Clauses prior to sharing a copy, but shall provide a meaningful summary where otherwise the data subject would not be able to understand the content of the Annexes. This is notwithstanding the obligations of the data exporter under Articles 13 and 14 Regulation (EU) 2016/679, in particular to inform the data subject about the transfer of special categories of data.

1.4 Accuracy

If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay. In this case the data importer shall cooperate with the data exporter to erase or rectify the data.

1.5 Storage limitation and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. Upon termination of the provision of the processing services, the data importer shall [[OPTION 1] delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so / [OPTION 2] return to the data exporter all personal data processed on its behalf and delete existing copies]. This is notwithstanding any requirements under local law applicable to the data importer prohibiting return or destruction of the personal data. In that case, the data importer [warrants] that it will guarantee, to the extent possible, the level of protection required by these Clauses and will only process it to the extent and for as long as required under that local law.

1.6 Security of processing

(a)  The data importer and, during the transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, they shall take due account of the risks involved in the processing, the nature of the personal data and the nature, scope, context and purposes of processing, and in particular consider encryption during transmission and anonymisation or pseudonymisation where this does not prevent fulfilling the purpose of processing. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall where possible remain under the exclusive control of the data exporter. In complying with this obligation, the data importer shall implement the technical and organisational measures specified in Annex II [Technical and organisational measures].

(b)  The data importer shall grant access to the data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. The data importer shall ensure that persons authorised to process the 

personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer, the data importer shall take appropriate measures to address the personal data breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to be taken to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall be provided subsequently as it becomes available without undue delay.

(d) The data importer shall cooperate in good faith with and assist the data exporter in any way necessary to enable the data exporter to comply with its obligations under the Regulation (EU) 2016/679, notably to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

1.7 Special categories of personal data

To the extent the transfer includes personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “special categories of data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B [Description of the transfer(s)].

1.8 Onward transfers

The data importer shall only disclose the personal data to a third party on the basis of documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union4 (hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses or, alternatively, an onward transfer by the data importer may only take place if:

(i)  the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation (EU) 2016/679 with respect to the processing in question;

(ii)  the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 Regulation (EU) 2016/679 that covers the onward transfer.

Any disclosure may only take place subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

1.9 Documentation and compliance

(a)  The data importer shall promptly and properly deal with inquiries from the data exporter that relate to the processing under these Clauses.

(b)  The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities on behalf of the data exporter under its responsibility.

(c)  The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and allow for and contribute to reviews of data files and documentation, or of audits of the processing activities covered by these Clauses, in particular if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d)  The data exporter may choose to conduct the audit by itself, to mandate, at its own cost, an independent auditor or to rely on an independent audit mandated by the data importer. Where the data importer mandates an audit, it has to bear the costs of the independent auditor. Audits may also include inspections at the premises of the data importer and shall be carried out with reasonable notice.

(e)  The data importer shall make the information referred to in paragraphs b) and c), including the results of any audits, available to the competent supervisory authority on request.

Clause 3

Obligations of the data importer in case of government access requests

3.1 Notification

(a) The data importer agrees to promptly notify the data exporter and, where possible, the data subject (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request by a public authority under the laws of the country of destination for disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided;

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

[For Module Three: The data exporter shall forward the notification to the controller.]

(b)  If the data importer is prohibited from notifying the data exporter and / or the data subject, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicate as much information and as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them upon request of the data exporter.

(c)  To the extent permissible under the laws of the country of destination, the data importer agrees to provide to the data exporter, in regular intervals for the duration of the contract, the greatest possible amount of relevant information on the requests received (in particular, number of requests, type of data requested, requesting authority or authorities, whether requests have been challenged and the outcome of such challenges, etc.). [For Module Three: The data exporter shall forward the information to the controller.]

(d)  The data importer agrees to preserve the information pursuant to paragraphs a) to c) for the duration of the contract and make it available to the competent supervisory authority upon request.

(e)  Paragraphs a) to c) are notwithstanding the obligation of the data importer pursuant to Clause 1 of Section III [Termination] to promptly inform the data exporter where it is unable to comply with these Clauses.

3.2 Review of legality and data minimisation

(a)  The data importer agrees to review, under the laws of the country of destination, the legality of the request for disclosure, notably whether it remains within the powers granted to the requesting public authority, and to exhaust all available remedies to challenge the request if, after a careful assessment, it concludes that there are grounds under the laws of the country of destination to do so. When challenging a request, the data importer shall seek interim measures with a view to suspend the effects of the request until the court has decided on the merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are notwithstanding the obligations of the data importer pursuant to Clause 2(e) of this Section.

(b)  The data importer agrees to document its legal assessment as well as any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make it available to the data exporter. It shall also make it available to the competent supervisory authority upon request.

(c)  The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

Clause 4

Use of sub-processors

 

(a)  OPTION 1 SPECIFIC PRIOR AUTHORISATION: The data importer shall not sub- contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without its prior specific written authorisation. The data importer shall submit the request for specific authorisation at least [Specify time period] prior to the engagement of the concerned sub-processor. The list of sub-processors already authorised by the data exporter can be found in Annex III. The Parties shall keep Annex III up to date.

OPTION 2 GENERAL WRITTEN AUTHORISATION: The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s). The list of sub-processors the data importer intends to engage can be found in Annex III. The data importer shall inform the data exporter in writing of any intended changes of that list through the addition or replacement of sub-processors at least [Specify time period] in advance, thereby giving the data exporter the opportunity to object to such changes prior to the engagement of the concerned sub-processor(s). The Parties shall keep Annex III up to date.

(b)  Where the data importer engages a sub-processor for carrying out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract which provides for the same data protection obligations as the ones binding the data importer under these Clauses, including in terms of third party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Section II, Clause 1.8 [Onward transfers]. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c)  The data importer shall provide, at the data exporter’s request, a copy of such a sub- processor agreement and subsequent amendments to the data exporter.

(d)  The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.

(e)  The data importer shall agree a third party beneficiary clause with the sub-processor whereby, in the event of bankruptcy of the data importer, the data exporter shall be a third party beneficiary to the sub-processor contract and shall have the right to enforce the contract against the sub-processor, including where applicable by instructing the sub-processor to erase or return the personal data.

Clause 5

Data subject rights

(a)  The data importer shall promptly notify the data exporter about any inquiry or request received directly from a data subject. It shall not respond to that inquiry or request itself unless and until it has been authorised to do so by the data exporter.

(b)  Taking into account the nature of the processing, the data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ inquiries and requests for the exercise of their rights under the GDPR.

Clause 6

Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints or requests. It shall promptly deal with any complaints or requests by a data subject.

[OPTION: The data importer agrees that the data subject may also lodge a complaint with [Insert name of an independent dispute resolution body]8 at no cost to the data subject. It shall inform the data subject, in the manner set out in paragraph a), of this additional redress mechanism and that (s)he is not required to make use of such additional redress mechanism, or follow a particular sequence in seeking redress.]

(a)  The Parties agree that if there is a dispute between a data subject and one of the Parties as regards compliance with these Clauses, they shall keep each other informed about such proceedings and, where appropriate, cooperate in resolving the issue in a timely fashion.

(b)  Where the dispute is not amicably resolved and the data subject invokes a third-party beneficiary right pursuant to Clause 2 of Section I, the data importer accepts the decision of the data subject to:

(i) lodge a complaint with the competent supervisory authority within the meaning of Clause 9 of Section II [Supervision];

(ii) refer the dispute to the competent courts within the meaning of Clause 3 of Section III [Choice of forum and jurisdiction].

(c) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) GDPR.

(d)  The data importer accepts to abide by a decision binding under the applicable EU / Member State law.

(e)  The data importer agrees that the choice made by the data subject will not prejudice his / her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 7

Liability

(a)  Each Party shall be liable to the other Party/ies for any material or non-material damages it causes the other Party/ies by any breach of these Clauses.

(b)  Liability as between the Parties is limited to actual damage suffered. Punitive damages are excluded.

(c)  The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer causes the data subject for any breach of the third party beneficiary rights under these Clauses.

(d)  The data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer causes the data subject for any breach of the third party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, the controller under the GDPR.

(e)  Where more than one Party is responsible for any damage caused to the data subject resulting from a breach of these Clauses, both Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against either of these Parties.

(f)  The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 8

Indemnification

(a)  The Parties agree that if one Party is held jointly and severally liable for a breach of these Clauses together with another Party, it is entitled to claim back as indemnification that part of the liability that corresponds to the other Party’s part of responsibility.

(b)  Indemnification is contingent upon the Party to be indemnified:

(i)  promptly notifying the other Party of a claim, and

(ii)  providing reasonable cooperation and assistance to the other Party in defence of such claim.

Clause 9

Supervision

(a)  The supervisory authority with responsibility for ensuring compliance by the data exporter with the GDPR as regards the data transfer, namely [Specify Supervisory Authority and Member State], shall act as competent supervisory authority. [Where the data exporter is not established in a Member State, but falls within the territorial scope of application of the GDPR according to its Article 3(2): The supervisory authority of the Member State where the data subjects whose personal data are transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, namely [Specify Member State], shall act as competent supervisory authority.]

(b)  The data importer agrees to submit itself to the jurisdiction of the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to inquiries, submit itself to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – FINAL PROVISIONS

Clause 1

Non-compliance with the Clauses and termination

(a)  The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b)  In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is notwithstanding Clause 2(f) of Section II.

(c)  The data exporter shall be entitled to terminate the contract where:

(i)  the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month,

(ii)  the data importer is in substantial or persistent breach of these Clauses, or

(iii)  the data importer fails to comply with a binding decision of a competent court or the competent supervisory authority regarding its obligations under these Clauses,

In this case, it shall inform the competent supervisory authority of such non- compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the responsible Party, unless the Parties have agreed otherwise.

(d)  Personal data that has already been transferred prior to the termination of the contract shall [for Modules One, Two and Three: at the choice of the data exporter immediately be returned to the data exporter or destroyed in their entirety. The same shall apply to any copies of the data] [for Module Four: be destroyed in their entirety, including any copy thereof]. The data importer shall certify the destruction of the data to the data exporter. These obligations are notwithstanding any requirements under local law applicable to the data importer that prohibits return or destruction of the personal data transferred. In that case, the data importer warrants that it will ensure, to the extent possible, the level of protection required by these Clauses and will only process the data to the extent and for as long as required under that local law.

(e)  Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) GDPR that covers the transfer of personal data to which these Clauses apply; or (ii) the GDPR becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under the GDPR.

Clause 2

Governing law

[OPTION 1: These Clauses shall be governed by the law of one of the Member States of the European Union, provided such law allows for third party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]

[OPTION 2 (for Module Two and Three): These Clauses shall be governed by the law of the Member State of the European Union where the data exporter is established. Where such law does not allow for third party beneficiary rights, they shall be governed by the law of another Member State of the European Union that allows for third party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]

Clause 3

Choice of forum and jurisdiction

(a)  Any dispute arising from these Clauses shall be resolved by the courts of a Member State of the European Union. The Parties agree to submit themselves to the jurisdiction of such courts.

(b)  The Parties agree that those shall be the courts of _____ (specify Member State).

(c)  Legal proceedings by a data subject against the data exporter and / or data importer may also be brought before the courts of the Member State where the data subject has his / her habitual residence.

SECTION I

Clause 1

Purpose and scope

(a)  The purpose of these standard contractual clauses (the Clauses) is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)1 [for the transfer of personal data to a third country].

(b)  Parties:

(i)  the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and

(ii)  the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via an intermediary entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”).

have agreed to these standard data protection clauses (hereinafter: “Clauses”).

(c)  These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1), and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to add or update information in the Annexes. This does not prevent the Parties from including the standard contractual clauses laid down in this Clauses in a wider contract, and to add other clauses or additional safeguards provided that they do not contradict, directly or indirectly, the standard contractual clauses or prejudice the fundamental rights or freedoms of data subjects. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of the Regulation (EU) 2016/679

(d)  These Clauses apply with respect to the transfer of personal data as specified in Clause 5 of Section I [Description of the Transfer(s)].

(e)  Annexes I, II and III form an integral part of these Clauses.

Clause 2

Third party beneficiaries

(a)  Data subjects may invoke and enforce these Clauses, as third party beneficiaries, against the data exporter and / or data importer, with the following exceptions:

(i)  Section I;

(ii)  Section II - Module One: Clause 1.5 (d) and Clause 1.9(b); Module Two: Clause 1.9(a), (c), (d) and (e); Module Three: Clause 1.1 and Clause 1.9(a), (c), (d) and (e); Module Four: Clause 1.1, Clause 1.2 and Clause 1.3;

(iii)  Section II, Clause 3.1 (c), (d) and (e);

(iv)  Section II, Clause 4;

(v)  Section II - Module One: Clause 7(a), (b); Modules Two and Three: Clause 7(a), (b);

(vi)  Section II, Clause 8;

(vii)  Section II, Clause 9;

(viii)  Section III, Clause 1 and Clause 3(a), (b).

(b)  Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 3

Interpretation

(a)  Where these Clauses use the terms defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b)  These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c)  These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 4

Hierarchy

In the event of a conflict between these Clauses and the provisions of any other agreement between the Parties existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 5

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purposes for which they are transferred, are specified in Annex I.B [Description of the transfer(s)].

Clause 6 - Optional

Docking clause

(a)  An entity that is not a Party to the Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer by completing Annex I.A [List of Parties], Annex I.B [Description of the transfer(s)] and Annex II [Technical and organisational measures].

(b)  Once Annex I.A. is completed and signed, the acceding entity shall be treated as a Party to these Clauses and shall have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c)  The acceding Party shall have no rights or obligations arising from the period prior to the date of signing Annex I.A.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 1

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able to satisfy its obligations under these Clauses.

1.1 Instructions

(a)  The data exporter has informed the data importer that it acts as processor under the instructions of the controller(s) as specified in Annex I.A. [List of parties], which the data exporter shall make available to the data importer prior to processing.

(b)  The data importer shall process the personal data only on documented instructions from the controller and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further instructions regarding the data processing within the framework of the contract agreed with the data importer throughout the duration of the contract, but such instructions shall always be documented.

(c)  The data importer shall immediately inform the data exporter if it is unable to follow those instructions. To the extent the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller thereof.

1.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B. [Description of the transfer(s)].

1.3 Transparency

The Parties shall provide the data subject with a copy of the Clauses upon request. To the extent necessary to protect business secrets or other confidential information, the Parties may redact the text of the Annexes to these Clauses prior to sharing a copy, but shall provide a meaningful summary where otherwise the data subject would not be able to understand the content of the Annexes.

1.4 Accuracy

If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party and the controller without undue delay. In this case the data importer shall cooperate with the data exporter and the controller to rectify or erase the data.

1.5 Storage limitation and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. Upon termination of the provision of the processing services, the data importer shall [[OPTION 1] delete all personal data processed on behalf of the controller and certify to the data exporter that it has done so/ [OPTION 2] return to the data exporter all personal data processed on its behalf and delete existing copies]. This is notwithstanding any requirements under local law applicable to the data importer prohibiting return or destruction of the personal data. In that case, the data importer [warrants] that it will guarantee, to the extent possible, the level of protection required by these Clauses and will only process it to the extent and for as long as required under that local law.

1.6 Security of processing

(a)  The data importer and, during the transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, they shall take due account of the risks involved in the processing, the nature of the personal data and the nature, scope, context and purposes of processing, and in particular consider encryption during transmission and anonymisation or pseudonymisation where this does not prevent fulfilling the purpose of processing. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall where possible remain under the exclusive control of the data exporter. In complying with this obligation, the data importer shall implement the technical and organisational measures specified in Annex II [Technical and organisational measures].

(b)  The data importer shall grant access to the data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. The data importer shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer, the data importer shall take appropriate measures to address the personal data breach, including measures to mitigate its adverse effects. The data importer shall also notify, without undue delay, the data exporter and, where appropriate, the controller after having become aware of it. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the data breach. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall be provided subsequently as it becomes available without undue delay.

(d) The data importer shall cooperate in good faith with and assist the data exporter in any way necessary to enable the data exporter to comply with its obligations under the GDPR, notably to notify its controller so that the latter may notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

1.7 Special categories of personal data

To the extent the transfer includes personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “special categories of data”), the data importer shall apply the specific restrictions and/or additional safeguards set out in Annex I.B [Description of the transfer(s)].

1.8 Onward transfers

The data importer shall only disclose the personal data to a third party on the basis of documented instructions from the controller. In addition, the data may only be disclosed to a third party located outside the European Union5 (hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses or, alternatively, an onward transfer by the data importer may only take place if:

(i)  the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 GDPR;

(ii)  the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 GDPR that covers the onward transfer.

Any disclosure may only take place subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

1.9 Documentation and compliance

(a)  The data importer shall promptly and properly deal with inquiries from the data exporter or the controller that relate to the processing under these Clauses.

(b)  The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities on behalf of the controller under its responsibility.

(c)  The data importer shall make available to the data exporter and the controller all information necessary to demonstrate compliance with the obligations set out in these Clauses and allow for and contribute to reviews of data files and documentation, or to audits of the processing activities covered by these Clauses, in particular if there are indications of non-compliance. In deciding on a review or audit, the controller or data exporter may take into account relevant certifications held by the data importer.

(d)  The controller or data exporter may choose to conduct the audit by itself, to mandate, at its own cost, an independent auditor or to rely on an independent audit mandated by the data importer. Where the data importer mandates an audit, it has to bear the costs of the independent auditor. Audits may also include inspections at the premises of the data importer and shall be carried out with reasonable notice.

(e)  The data importer shall make the information referred to in paragraphs b) and c), including the results of any audits, available to the competent supervisory authority on request.

Clause 2

Local laws affecting compliance with the Clauses

(a)  The Parties warrant that they have no reason to believe that the laws in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) GDPR, are not in contradiction with the Clauses.

(b)  The Parties declare that in providing the warranty in paragraph a, they have taken due account in particular of the following elements:

(i)  the specific circumstances of the transfer, including the content and duration of the contract; the scale and regularity of transfers; the length of the processing chain, the number of actors involved and the transmission channels used; the type of recipient; the purpose of processing; the nature of the personal data transferred; any relevant practical experience with prior instances, or the absence of requests for disclosure from public authorities received by the data importer for the type of data transferred;

(ii)  the laws of the third country of destination relevant in light of the circumstances of the transfer, including those requiring to disclose data to public authorities or authorising access by such authorities, as well as the applicable limitations and safeguards;

(iii)  any safeguards in addition to those under these Clauses, including the technical and organisational measures applied during transmission and to the processing of the personal data in the country of destination.

(c)  The data importer warrants that, in carrying out the assessment under paragraph b), it has made best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d)  The parties agree to document the assessment under paragraph b) and make it available to the competent supervisory authority upon request.

(e)  The data importer agrees to promptly notify the data exporter if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws not in line with the requirements under paragraph a), including following a change of the laws in the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements under paragraph a).

(f)  Following a notification pursuant to paragraph e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under the Clauses, the data exporter shall promptly identify appropriate measures (such as, for instance, technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and / or data importer to address the situation, if appropriate in consultation with the [for Module Three: controller and] competent supervisory authority. If the data exporter decides to continue the transfer, based on its assessment that these additional measures will allow the data importer to fulfil its obligations under the Clauses, the data exporter shall forward the notification to the competent supervisory authority together with an explanation, including a description of the measures taken. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by [for Module Three: the controller or] the competent supervisory authority to do so. In this case, the data exporter shall inform the competent supervisory authority and shall be entitled to terminate the contract. In case the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the responsible Party, unless the Parties have agreed otherwise. When the contract is terminated pursuant to this Clause, Section III, Clause 1 (d) and (e) shall apply.

Clause 3

Obligations of the data importer in case of government access requests

3.1 Notification

(a) The data importer agrees to promptly notify the data exporter and, where possible, the data subject (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request by a public authority under the laws of the country of destination for disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided;

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

[For Module Three: The data exporter shall forward the notification to the controller.]

(b)  If the data importer is prohibited from notifying the data exporter and / or the data subject, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicate as much information and as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them upon request of the data exporter.

(c)  To the extent permissible under the laws of the country of destination, the data importer agrees to provide to the data exporter, in regular intervals for the duration of the contract, the greatest possible amount of relevant information on the requests received (in particular, number of requests, type of data requested, requesting authority or authorities, whether requests have been challenged and the outcome of such challenges, etc.). [For Module Three: The data exporter shall forward the information to the controller.]

(d)  The data importer agrees to preserve the information pursuant to paragraphs a) to c) for the duration of the contract and make it available to the competent supervisory authority upon request.

(e)  Paragraphs a) to c) are notwithstanding the obligation of the data importer pursuant to Clause 1 of Section III [Termination] to promptly inform the data exporter where it is unable to comply with these Clauses.

3.2 Review of legality and data minimisation

(a)  The data importer agrees to review, under the laws of the country of destination, the legality of the request for disclosure, notably whether it remains within the powers granted to the requesting public authority, and to exhaust all available remedies to challenge the request if, after a careful assessment, it concludes that there are grounds under the laws of the country of destination to do so. When challenging a request, the data importer shall seek interim measures with a view to suspend the effects of the request until the court has decided on the merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are notwithstanding the obligations of the data importer pursuant to Clause 2(e) of this Section.

(b)  The data importer agrees to document its legal assessment as well as any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make it available to the data exporter. It shall also make it available to the competent supervisory authority upon request.

(c)  The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

Clause 4

Use of sub-processors

(a) OPTION 1 SPECIFIC PRIOR AUTHORISATION: The data importer shall not sub- contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without prior specific written authorisation of the controller. The data importer shall submit the request for specific authorisation at least [Specify time period] prior to the engagement of the concerned sub-processor. It 

shall inform the data exporter of such engagement. The list of sub-processors already authorised by the controller can be found in Annex III. The Parties shall keep Annex III up to date.

OPTION 2 GENERAL WRITTEN AUTHORISATION: The data importer has the controller’s general authorisation for the engagement of sub-processor(s). The list of sub-processors the data importer intends to engage can be found in Annex III. The data importer shall inform the controller in writing of any intended changes of that list through the addition or replacement of sub-processors at least [Specify time period] in advance, thereby giving the controller the opportunity to object to such changes prior to the engagement of the concerned sub-processor(s). It shall inform the data exporter of such engagement. The Parties shall keep Annex III up to date.

(b)  Where the data importer engages a sub-processor for carrying out specific processing activities (on behalf of the controller), it shall do so by way of a written contract which provides for the same data protection obligations as the ones binding the data importer under these Clauses, including in terms of third party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Section II, Clause 1.8 [Onward transfers]. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c)  The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and subsequent amendments.

(d)  The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.

(e)  The data importer shall agree a third party beneficiary clause with the sub-processor whereby, in the event of bankruptcy of the data importer, the data exporter shall be a third party beneficiary to the sub-processor contract and shall have the right to enforce the contract against the sub-processor, including where applicable by instructing the sub-processor to erase or return the personal data.

Clause 5

Data subject rights

(a)  The data importer shall promptly notify the data exporter and, where appropriate, the controller about any inquiry or request received directly from a data subject, without responding to that inquiry or request unless and until it has been otherwise authorised to do so by the controller.

(b)  Taking into account the nature of the processing, the data importer shall assist the controller in fulfilling its obligations to respond to data subjects’ inquiries and requests for the exercise of their rights.

Clause 6

Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints or requests. It shall promptly deal with any complaints or requests by a data subject.

[OPTION: The data importer agrees that the data subject may also lodge a complaint with [Insert name of an independent dispute resolution body]8 at no cost to the data subject. It shall inform the data subject, in the manner set out in paragraph a), of this additional redress mechanism and that (s)he is not required to make use of such additional redress mechanism, or follow a particular sequence in seeking redress.]

(a)  The Parties agree that if there is a dispute between a data subject and one of the Parties as regards compliance with these Clauses, they shall keep each other informed about such proceedings and, where appropriate, cooperate in resolving the issue in a timely fashion.

(b)  Where the dispute is not amicably resolved and the data subject invokes a third-party beneficiary right pursuant to Clause 2 of Section I, the data importer accepts the decision of the data subject to:

(i) lodge a complaint with the competent supervisory authority within the meaning of Clause 9 of Section II [Supervision];

(ii) refer the dispute to the competent courts within the meaning of Clause 3 of Section III [Choice of forum and jurisdiction].

(c) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) GDPR.

(d)  The data importer accepts to abide by a decision binding under the applicable EU / Member State law.

(e)  The data importer agrees that the choice made by the data subject will not prejudice his / her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 7

Liability

(a)  Each Party shall be liable to the other Party/ies for any material or non-material damages it causes the other Party/ies by any breach of these Clauses.

(b)  Liability as between the Parties is limited to actual damage suffered. Punitive damages are excluded.

(c)  The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer causes the data subject for any breach of the third party beneficiary rights under these Clauses.

(d)  The data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer causes the data subject for any breach of the third party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, the controller under the GDPR.

(e)  Where more than one Party is responsible for any damage caused to the data subject resulting from a breach of these Clauses, both Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against either of these Parties.

(f)  The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 8

Indemnification

(a)  The Parties agree that if one Party is held jointly and severally liable for a breach of these Clauses together with another Party, it is entitled to claim back as indemnification that part of the liability that corresponds to the other Party’s part of responsibility.

(b)  Indemnification is contingent upon the Party to be indemnified:

(i)  promptly notifying the other Party of a claim, and

(ii)  providing reasonable cooperation and assistance to the other Party in defence of such claim.

Clause 9

Supervision

(a)  The supervisory authority with responsibility for ensuring compliance by the data exporter with the GDPR as regards the data transfer, namely [Specify Supervisory Authority and Member State], shall act as competent supervisory authority. [Where the data exporter is not established in a Member State, but falls within the territorial scope of application of the GDPR according to its Article 3(2): The supervisory authority of the Member State where the data subjects whose personal data are transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, namely [Specify Member State], shall act as competent supervisory authority.]

(b)  The data importer agrees to submit itself to the jurisdiction of the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to inquiries, submit itself to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – FINAL PROVISIONS

Clause 1

Non-compliance with the Clauses and termination

(a)  The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b)  In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is notwithstanding Clause 2(f) of Section II.

(c)  The data exporter shall be entitled to terminate the contract where:

(i)  the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month,

(ii)  the data importer is in substantial or persistent breach of these Clauses, or

(iii)  the data importer fails to comply with a binding decision of a competent court or the competent supervisory authority regarding its obligations under these Clauses,

In this case, it shall inform the competent supervisory authority of such non- compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the responsible Party, unless the Parties have agreed otherwise.

(d)  Personal data that has already been transferred prior to the termination of the contract shall [for Modules One, Two and Three: at the choice of the data exporter immediately be returned to the data exporter or destroyed in their entirety. The same shall apply to any copies of the data] [for Module Four: be destroyed in their entirety, including any copy thereof]. The data importer shall certify the destruction of the data to the data exporter. These obligations are notwithstanding any requirements under local law applicable to the data importer that prohibits return or destruction of the personal data transferred. In that case, the data importer warrants that it will ensure, to the extent possible, the level of protection required by these Clauses and will only process the data to the extent and for as long as required under that local law.

(e)  Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) GDPR that covers the transfer of personal data to which these Clauses apply; or (ii) the GDPR becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under the GDPR.

Clause 2

Governing law

[OPTION 1: These Clauses shall be governed by the law of one of the Member States of the European Union, provided such law allows for third party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]

[OPTION 2 (for Module Two and Three): These Clauses shall be governed by the law of the Member State of the European Union where the data exporter is established. Where such law does not allow for third party beneficiary rights, they shall be governed by the law of another Member State of the European Union that allows for third party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]

Clause 3

Choice of forum and jurisdiction

(a)  Any dispute arising from these Clauses shall be resolved by the courts of a Member State of the European Union. The Parties agree to submit themselves to the jurisdiction of such courts.

(b)  The Parties agree that those shall be the courts of _____ (specify Member State).

(c)  Legal proceedings by a data subject against the data exporter and / or data importer may also be brought before the courts of the Member State where the data subject has his / her habitual residence.

SECTION I

Clause 1

Purpose and scope

(a)  The purpose of these standard contractual clauses (the Clauses) is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)1 [for the transfer of personal data to a third country].

(b)  Parties:

(i)  the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and

(ii)  the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via an intermediary entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”).

have agreed to these standard data protection clauses (hereinafter: “Clauses”).

(c)  These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1), and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to add or update information in the Annexes. This does not prevent the Parties from including the standard contractual clauses laid down in this Clauses in a wider contract, and to add other clauses or additional safeguards provided that they do not contradict, directly or indirectly, the standard contractual clauses or prejudice the fundamental rights or freedoms of data subjects. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of the Regulation (EU) 2016/679

(d)  These Clauses apply with respect to the transfer of personal data as specified in Clause 5 of Section I [Description of the Transfer(s)].

(e)  Annexes I, II and III form an integral part of these Clauses.

Clause 2

Third party beneficiaries

(a)  Data subjects may invoke and enforce these Clauses, as third party beneficiaries, against the data exporter and / or data importer, with the following exceptions:

(i)  Section I;

(ii)  Section II - Module One: Clause 1.5 (d) and Clause 1.9(b); Module Two: Clause 1.9(a), (c), (d) and (e); Module Three: Clause 1.1 and Clause 1.9(a), (c), (d) and (e); Module Four: Clause 1.1, Clause 1.2 and Clause 1.3;

(iii)  Section II, Clause 3.1 (c), (d) and (e);

(iv)  Section II, Clause 4;

(v)  Section II - Module One: Clause 7(a), (b); Modules Two and Three: Clause 7(a), (b);

(vi)  Section II, Clause 8;

(vii)  Section II, Clause 9;

(viii)  Section III, Clause 1 and Clause 3(a), (b).

(b)  Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 3

Interpretation

(a)  Where these Clauses use the terms defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b)  These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c)  These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 4

Hierarchy

In the event of a conflict between these Clauses and the provisions of any other agreement between the Parties existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 5

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purposes for which they are transferred, are specified in Annex I.B [Description of the transfer(s)].

Clause 6 - Optional

Docking clause

(a)  An entity that is not a Party to the Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer by completing Annex I.A [List of Parties], Annex I.B [Description of the transfer(s)] and Annex II [Technical and organisational measures].

(b)  Once Annex I.A. is completed and signed, the acceding entity shall be treated as a Party to these Clauses and shall have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c)  The acceding Party shall have no rights or obligations arising from the period prior to the date of signing Annex I.A.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 1

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able to satisfy its obligations under these Clauses.

1.1 Instructions

(a)  The data exporter shall process the personal data only on documented instructions from the data importer acting as its controller.

(b)  The data exporter shall immediately inform the data importer if it is unable to follow those instructions, including if such instructions infringe the GDPR or other Union or Member State data protection law.

(c)  The data importer shall refrain from any action that would prevent the data exporter from fulfilling its obligations under the GDPR, including as regards cooperation with competent supervisory authorities.

1.2 Security of processing

The Parties shall implement appropriate technical and organisational measures to ensure the security of the data, including during the transmission, and the protection against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access. In assessing the appropriate level of security, they shall take due account of the risks involved in the processing, the nature of the personal data6 and the nature, scope, context and purposes of 

processing, and in particular consider encryption during transmission and anonymisation or pseudonymisation where this does not prevent fulfilling the purpose of processing.

1.3 Documentation and compliance

The Parties shall be able to demonstrate compliance with these Clauses.

Clause 2

Local laws affecting compliance with the Clauses

(only if the EU processor combines the personal data received from the third country-controller with personal data collected by the processor in the EU)

(a)  The Parties warrant that they have no reason to believe that the laws in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) GDPR, are not in contradiction with the Clauses.

(b)  The Parties declare that in providing the warranty in paragraph a, they have taken due account in particular of the following elements:

(i)  the specific circumstances of the transfer, including the content and duration of the contract; the scale and regularity of transfers; the length of the processing chain, the number of actors involved and the transmission channels used; the type of recipient; the purpose of processing; the nature of the personal data transferred; any relevant practical experience with prior instances, or the absence of requests for disclosure from public authorities received by the data importer for the type of data transferred;

(ii)  the laws of the third country of destination relevant in light of the circumstances of the transfer, including those requiring to disclose data to public authorities or authorising access by such authorities, as well as the applicable limitations and safeguards;

(iii)  any safeguards in addition to those under these Clauses, including the technical and organisational measures applied during transmission and to the processing of the personal data in the country of destination.

(c)  The data importer warrants that, in carrying out the assessment under paragraph b), it has made best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d)  The parties agree to document the assessment under paragraph b) and make it available to the competent supervisory authority upon request.

(e)  The data importer agrees to promptly notify the data exporter if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws not in line with the requirements under paragraph a), including following a change of the laws in the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements under paragraph a).

(f)  Following a notification pursuant to paragraph e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under the Clauses, the data exporter shall promptly identify appropriate measures (such as, for instance, technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and / or data importer to address the situation, if appropriate in consultation with the [for Module Three: controller and] competent supervisory authority. If the data exporter decides to continue the transfer, based on its assessment that these additional measures will allow the data importer to fulfil its obligations under the Clauses, the data exporter shall forward the notification to the competent supervisory authority together with an explanation, including a description of the measures taken. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by [for Module Three: the controller or] the competent supervisory authority to do so. In this case, the data exporter shall inform the competent supervisory authority and shall be entitled to terminate the contract. In case the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the responsible Party, unless the Parties have agreed otherwise. When the contract is terminated pursuant to this Clause, Section III, Clause 1 (d) and (e) shall apply.

Clause 3

Obligations of the data importer in case of government access requests

(only if the EU processor combines the personal data received from the third country-controller with personal data collected by the processor in the EU)

3.1 Notification

(a) The data importer agrees to promptly notify the data exporter and, where possible, the data subject (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request by a public authority under the laws of the country of destination for disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided;

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

[For Module Three: The data exporter shall forward the notification to the controller.]

(b)  If the data importer is prohibited from notifying the data exporter and / or the data subject, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicate as much information and as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them upon request of the data exporter.

(c)  To the extent permissible under the laws of the country of destination, the data importer agrees to provide to the data exporter, in regular intervals for the duration of the contract, the greatest possible amount of relevant information on the requests received (in particular, number of requests, type of data requested, requesting authority or authorities, whether requests have been challenged and the outcome of such challenges, etc.). [For Module Three: The data exporter shall forward the information to the controller.]

(d)  The data importer agrees to preserve the information pursuant to paragraphs a) to c) for the duration of the contract and make it available to the competent supervisory authority upon request.

(e)  Paragraphs a) to c) are notwithstanding the obligation of the data importer pursuant to Clause 1 of Section III [Termination] to promptly inform the data exporter where it is unable to comply with these Clauses.

3.2 Review of legality and data minimisation

(a)  The data importer agrees to review, under the laws of the country of destination, the legality of the request for disclosure, notably whether it remains within the powers granted to the requesting public authority, and to exhaust all available remedies to challenge the request if, after a careful assessment, it concludes that there are grounds under the laws of the country of destination to do so. When challenging a request, the data importer shall seek interim measures with a view to suspend the effects of the request until the court has decided on the merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are notwithstanding the obligations of the data importer pursuant to Clause 2(e) of this Section.

(b)  The data importer agrees to document its legal assessment as well as any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make it available to the data exporter. It shall also make it available to the competent supervisory authority upon request.

(c)  The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

Clause 4

Use of sub-processors

N/A

Clause 5

Data subject rights

 

The Parties shall assist each other in responding to inquiries and requests made by data subjects under the local law applicable to the data importer or, for data processing by the data exporter in the EU, under the GDPR.

Clause 6

Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints or requests. It shall promptly deal with any complaints or requests by a data subject.

[OPTION: The data importer agrees that the data subject may also lodge a complaint with [Insert name of an independent dispute resolution body]8 at no cost to the data subject. It shall inform the data subject, in the manner set out in paragraph a), of this additional redress mechanism and that (s)he is not required to make use of such additional redress mechanism, or follow a particular sequence in seeking redress.]

Clause 7

Liability

(a)  Each Party shall be liable to the other Party/ies for any material or non-material damages it causes the other Party/ies by any breach of these Clauses.

(b)  Liability as between the Parties is limited to actual damage suffered. Punitive damages are excluded.

(c)  Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that Party causes the data subject for any breach of the third party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter under the GDPR.

(d)  Where more than one Party is responsible for any damage caused to the data subject resulting from a breach of these Clauses, both Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against either of these Parties.

(e)  The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 8

Indemnification

(a)  The Parties agree that if one Party is held jointly and severally liable for a breach of these Clauses together with another Party, it is entitled to claim back as indemnification that part of the liability that corresponds to the other Party’s part of responsibility.

(b)  Indemnification is contingent upon the Party to be indemnified:

(i)  promptly notifying the other Party of a claim, and

(ii)  providing reasonable cooperation and assistance to the other Party in defence of such claim.

Clause 9

Supervision

(a)  The supervisory authority with responsibility for ensuring compliance by the data exporter with the GDPR as regards the data transfer, namely [Specify Supervisory Authority and Member State], shall act as competent supervisory authority. [Where the data exporter is not established in a Member State, but falls within the territorial scope of application of the GDPR according to its Article 3(2): The supervisory authority of the Member State where the data subjects whose personal data are transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, namely [Specify Member State], shall act as competent supervisory authority.]

(b)  The data importer agrees to submit itself to the jurisdiction of the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to inquiries, submit itself to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – FINAL PROVISIONS

Clause 1

Non-compliance with the Clauses and termination

(a)  The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b)  In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is notwithstanding Clause 2(f) of Section II.

(c)  The data exporter shall be entitled to terminate the contract where:

(i)  the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month,

(ii)  the data importer is in substantial or persistent breach of these Clauses, or

(iii)  the data importer fails to comply with a binding decision of a competent court or the competent supervisory authority regarding its obligations under these Clauses,

In this case, it shall inform the competent supervisory authority of such non- compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the responsible Party, unless the Parties have agreed otherwise.

(d)  Personal data that has already been transferred prior to the termination of the contract shall [for Modules One, Two and Three: at the choice of the data exporter immediately be returned to the data exporter or destroyed in their entirety. The same shall apply to any copies of the data] [for Module Four: be destroyed in their entirety, including any copy thereof]. The data importer shall certify the destruction of the data to the data exporter. These obligations are notwithstanding any requirements under local law applicable to the data importer that prohibits return or destruction of the personal data transferred. In that case, the data importer warrants that it will ensure, to the extent possible, the level of protection required by these Clauses and will only process the data to the extent and for as long as required under that local law.

(e)  Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) GDPR that covers the transfer of personal data to which these Clauses apply; or (ii) the GDPR becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under the GDPR.

Clause 2

Governing law

[OPTION 1: These Clauses shall be governed by the law of one of the Member States of the European Union, provided such law allows for third party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]

[OPTION 2 (for Module Two and Three): These Clauses shall be governed by the law of the Member State of the European Union where the data exporter is established. Where such law does not allow for third party beneficiary rights, they shall be governed by the law of another Member State of the European Union that allows for third party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]

Clause 3

Choice of forum and jurisdiction

(a)  Any dispute arising from these Clauses shall be resolved by the courts of a Member State of the European Union. The Parties agree to submit themselves to the jurisdiction of such courts.

(b)  The Parties agree that those shall be the courts of _____ (specify Member State).

(c)  Legal proceedings by a data subject against the data exporter and / or data importer may also be brought before the courts of the Member State where the data subject has his / her habitual residence.

A. LIST OF PARTIES

Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of the data exporter’s data protection officer and/or representative in the European Union]

1. Name: ...

Address: ...

Contact person’s name, position and contact details: ... Activities relevant to the data transferred under the Clauses: ... Signature and date: ...

2. ...

Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]

1. Name: ...

Address: ...

Contact person’s name, position and contact details: ... Activities relevant to the data transferred under the Clauses: ... Signature and date: ...

2. ...

[For processor to processor transfers: identity and contact details of the controller(s):

1. Name: ...

Address: ...

Contact person’s name, position and contact details: ... Activities relevant to the transfer: ...

Signature and date: ...

2. ...]

B. DESCRIPTION OF THE TRANSFER

[For transfers to (sub-) processors, this annex reflects the corresponding instructions received from the controller(s):]

Categories of data subjects whose personal data is transferred .............................

Categories of personal data transferred

.............................

Special categories of personal data transferred (if applicable) and applied restrictions or safeguards that fully takes into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

.............................

Purpose(s) of the data transfer and further processing

.............................

Maximum data retention periods, if applicable

..........................

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

Description of the technical and organisational measures implemented by the data importer(s), including any relevant certifications

[TAKING INTO ACCOUNT THE NATURE, SCOPE, CONTEXT AND PURPOSES OF THE PROCESSING ACTIVITY AS WELL AS THE RISK FOR THE RIGHTS AND FREEDOMS OF NATURAL PERSONS, DESCRIBE ELEMENTS THAT ARE ESSENTIAL TO THE LEVEL OF SECURITY]

For example:

[DESCRIBE REQUIREMENTS FOR PSEUDONYMISATION AND ENCRYPTION OF PERSONAL DATA]

[DESCRIBE REQUIREMENTS FOR ENSURING ONGOING CONFIDENTIALITY, INTEGRITY, AVAILABILITY AND RESILIENCE OF PROCESSING SYSTEMS AND SERVICES]

[DESCRIBE REQUIREMENTS FOR THE ABILITY TO RESTORE THE AVAILABILITY AND ACCESS TO PERSONAL DATA IN A TIMELY MANNER IN THE EVENT OF A PHYSICAL OR TECHNICAL INCIDENT]

[DESCRIBE REQUIREMENTS FOR PROCESSES FOR REGULARLY TESTING, ASSESSING AND EVALUATING THE EFFECTIVENESS OF TECHNICAL AND ORGANISATIONAL MEASURES FOR ENSURING THE SECURITY OF THE PROCESSING]

[DESCRIBE REQUIREMENTS FOR USERS INDENTIFICATION AND AUTHORISATION]

[DESCRIBE REQUIREMENTS FOR THE PROTECTION OF DATA DURING TRANSMISSION]

[DESCRIBE REQUIREMENTS FOR THE PROTECTION OF DATA DURING STORAGE]

[DESCRIBE REQUIREMENTS FOR PHYSICAL SECURITY OF LOCATIONS AT WHICH PERSONAL DATA ARE PROCESSED]

[DESCRIBE REQUIREMENTS FOR EVENTS LOGGING]

[DESCRIBE REQUIREMENTS FOR SYSTEM CONFIGURATION, INCLUDING DEFAULT CONFIGURATION]

[DESCRIBE REQUIREMENTS FOR INTERNAL IT AND IT SECURITY GOVERNANCE AND MANAGEMENTS]

[DESCRIBE REQUIREMENTS FOR CERTIFICATION / ASSURANCE OF PROCESSES AND PRODUCTS]

[DESCRIBE REQUIREMENTS FOR DATA AVOIDANCE AND MINIMISATION] [DESCRIBE REQUIREMENTS FOR DATA QUALITY]

[DESCRIBE REQUIREMENTS FOR DATA RETENTION]

[DESCRIBE REQUIREMENTS FOR ACCOUNTABILITY]

[DESCRIBE REQUIREMENTS FOR DATA PORTABILITY AND DATA DISPOSAL]

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the data processor to be able to provide assistance to the controller

List of Sub-Processors

Mechanisms for Data Transfers under the GDPR:

The European Commission describes adequacy decisions as follows:

'The European Commission has the power to determine, on the basis of Article 45 of General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR') whether a country outside the EU offers an adequate level of data protection.

The adoption of an adequacy decision involves:

  • a proposal from the European Commission;
  • an opinion of the European Data Protection Board;
  • an approval from representatives of EU countries; and
  • the adoption of the decision by the European Commission.

At any time, the European Parliament and the Council may request the European Commission to maintain, amend or withdraw the adequacy decision on the grounds that its act exceeds the implementing powers provided for in the regulation.

The effect of such a decision is that personal data can flow from the EU (and Norway, Liechtenstein and Iceland) to that third country without any further safeguard being necessary. In others words, transfers to the country in question will be assimilated to intra-EU transmissions of data.'

The following jurisdictions have thus far been recognised as providing adequate protection for personal data (i.e. are party to an adequacy decision):

  • Andorra
  • Argentina
  • Canada (commercial organisations)
  • Faroe Islands
  • Guernsey
  • Israel
  • Isle of Man
  • Japan (private sector)
  • Jersey
  • New Zealand
  • Switzerland (under review)
  • Uruguay

Adequacy talks with South Korea are also currently ongoing.

For further information see the EU Adequacy Tab in the Data Transfers Portal.

Appropriate safeguards include standard contractual clauses ('SCCs') adopted by the Commission and SCCs adopted by a supervisory authority and approved by the Commission (Article 46(2)(c) and (d) of the GDPR). These SCCs may be included in a contract with another party as a means of providing protection for personal data. While the CJEU Decision ruled that SCCs were valid, it also noted that they do not on their own necessarily provide an adequate level of protection. This means that an assessment of the transfer should be made and that supplementary measures may need to be utilised alongside standard SCCs in order to ensure there is adequate ongoing protection.

The assessment is the responsibility of the exporter and importer and should determine whether the third country provides adequate protection. Since the CJEU Decision emphasised surveillance laws and public authority access to personal data in the US, guidance on assessments has tended to similarly highlight public authority access to data. Supplementary measures may involve amendments to the standard SCCs, or technical/organisational security measures such as encryption, however further guidance on this matter is expected from the EDPB and supervisory authorities.

Prior to the CJEU Decision, the Commission issued the following decisions on EU controller to non-EU or EEA controller and EU controller to non-EU or EEA processor SCCs:

The Commission released, on 12 November 2020, revised SCCs for public consultation.

Binding corporate rules ('BCRs') are considered an appropriate safeguard under Article 46 of the GDPR.

BCRs are approved by the competent supervisory authority in accordance with the consistency mechanism set out in Article 63 of the GDPR, provided that they (Article 47(1) of the GDPR):

  • are legally binding and apply to and are enforced by every member concerned in the group of undertakings, or group of enterprises engaged in a joint economic activity, including their employees;
  • expressly confer enforceable rights on data subjects with regard to the processing of their personal data; and
  • fulfil the requirements laid down in Article 47(2) of the GDPR.

Processes for approving BCRs can be time consuming, however they have proved to be a popular mechanism for large multinational organisations and are becoming more common around the world.

Article 47(2) of the GDPR establishes information a BCR must specify, see EU - GDPR - Data Transfers.

The CJEU Decision, however, impacts BCRs in a similar manner to SCCs. BCRs are required to meet the same threshold for the ongoing adequate protection of personal data as SCCs. Therefore, the EDPB has noted that jurisdiction assessments and supplementary measures may be required for BCRs in the same fashion as they are for SCCs.

For further general BCR information see the following procedural documents endorsed by the EDPB:

The Commission provides an overview list of certain companies for which the EU BCR cooperation procedures is closed, last updated on 25 May 2018, and the EDPB provides a register of selected BCRs since 2019.

Article 40 of the GDPR sets out provisions for codes of conduct. Codes of conduct are voluntary tools developed by associations or other representative bodies that cover certain data protection issues and tend to apply within sectors. International data transfers is one of the topics that a code of conduct as recognised under the GDPR can cover. Codes of conduct must be approved by a supervisory authority, and supervisory authorities are also tasked with generally encouraging the use of codes of conduct.

There are several requirements for the information contained in a code of conduct, including that a mechnism is established for monitoring compliance. Article 41 of the GDPR details how a body may be accredited by a supervisory authority to monitor compliance with a code conduct. Organisations do not need to be subject to the GDPR in order to be an adherent to a code of conduct.

A code of conduct for international data transfers will need to ensure that relevant provisions on cross-border transfers, such as ongoing adequate protection of personal data, are complied with. Similarly to BCRs, the CJEU Decision impacts codes of conduct used for cross-border transfers as it sets a new threshold for what should be considered in assessing adequate protection.

For further information on codes of conduct, see the General Data Protection Regulation Portal.

Article 42 of the GDPR establishes processes for certification. Certification functions in a similar manner to codes of conduct, in that it too is a voluntary system that is monitored or regulated through an accredited body and is used by organisations as a means of demonstrating compliance. Article 43 of the GDPR sets out provisions for accreditation of certification bodies. Certification must be renewed at least every 3 years, and all certification mechanisms and data protection seals and marks are collected in a register by the European Data Protection Board ('EDPB'). Supervisory authorities within Member States as well as the EDPB have been steadily issuing guidance, opionions, and decisions on certification (see here).

Similarly to BCRs and codes of conduct, the CJEU Decision impacts certification mechanisms by setting a new threshold for cross-border data transfers.

For further information on certification mechanisms see:

Article 49 of the GDPR establishes that in the absence of an adequacy decision, or of appropriate safeguards pursuant to Article 46, including BCRs, SCCs, codes of conduct or certification, a transfer or a set of transfers of personal data to a third country or an international organisation shall take place only on one of the following conditions:

  • the data subject has explicitly consented to the proposed transfer, after having been informed of the possible risks of such transfers for the data subject due to the absence of an adequacy decision and appropriate safeguards; 
  • the transfer is necessary for the performance of a contract between the data subject and the controller or the implementation of pre-contractual measures taken at the data subject's request; 
  • the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and another natural or legal person; 
  • the transfer is necessary for important reasons of public interest; 
  • the transfer is necessary for the establishment, exercise or defence of legal claims; 
  • the transfer is necessary in order to protect the vital interests of the data subject or of other persons, where the data subject is physically or legally incapable of giving consent; or
  • the transfer is made from a register which according to Union or Member State law is intended to provide information to the public and which is open to consultation either by the public in general or by any person who can demonstrate a legitimate interest, but only to the extent that the conditions laid down by Union or Member State law for consultation are fulfilled in the particular case. 

The EDPB has noted that, 'derogations under Article 49 are exemptions from the general principle that personal data may only be transferred to third countries if an adequate level of protection is provided for in the third country or if appropriate safeguards have been adduced and the data subjects enjoy enforceable and effective rights in order to continue to benefit from their fundamental rights and safeguards. Due to this fact and in accordance with the principles inherent in European law, the derogations must be interpreted restrictively so that the exception does not become the rule.'

The EDPB also stresses that the derogations under Article 49 are for specific situations and should be 'occasional' and 'not repetitive'. As such, Article 49 derogations should not be utilised as a mechanism for recurring international data transfers.

In regard to consent, the EDPB has further specified that consent must be:

In relation to other derogations, the EDPB emphasises the importance of a 'necessity test' and the complexities of assessing whether a transfer can be considered necessary. In general terms, the EDPB strongly encourages the use of other mechanisms than Article 49 derogations wherever possible.

Following the CJEU Decision, several EU Member State supervisory authorities noted that transfers to the US, or to other third countries deemed not to provide adequate protection, were still possible under Article 49 derogations, at least on a temporary basis. However, these authorities also tend to note that Article 49 should not be relied upon for repeating or regular transfers.

For further information on Article 49, see the EDPB Guidelines 2/2018 on derogations of Article 49 under Regulation 2016/679.

Key documents

  • Access the Judgment here
  • Access the CJEU press release here
  • Access the first NOYB statement here
  • FAQs and model requests issued by NOYB here
  • FAQs issued by the European Data Protection Board here
  • European Commission and U.S. Department of Commerce joint statement on new enhanced Privacy Shield here and here
  • FAQs issued by the Interactive Advertising Bureau ('IAB') Europe here
  • EDPB forms Schrems II complaints and guidance taskforces here
  • FDPIC finds Swiss-US Privacy Shield inadequate here
  • Council of Europe Chair and Data Protection Commissioner issue joint statement and discuss relevance of Convention 108+ for assessments here
  • Guide by the LfDI Baden-Württemberg here
  • DoC Deputy Assistant Secretary statement and white paper on Schrems II here
  • EDPS strategy for EU institutions to comply with Schrems II here
  • NOYB statement updating on 101 complaints and welcoming EDPB task force here
  • French Conseil d'Etat rules that Health Data Hub should not be suspended here
  • EDPS newsletter on data transfers to third countries here
  • EDPB recommendations on surveillance here
  • EDPB recommendations on supplementary transfer measures here

Key resources from OneTrust DataGuidance