The European Commission launched, on 12 November 2020, a public consultation on its draft Implementing Decision on Standard Contractual Clauses for the Transfer of Personal Data to Third Countries Pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council ('the SCCs Draft Decision') and its Annex. In particular, the SCCs Draft Decision outlines that the SCCs set out in the Annex are considered to provide appropriate safeguards within the meaning of Article 46(1) and (2)(c) of the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR') for the transfer of personal data from a controller or processor subject to the GDPR (data exporter), to a controller or (sub-) processor not subject to the GDPR (data importer).

In addition, the SCCs provided within the Annex address, among other things:

• the purpose and scope of SCCs;
• data protection safeguards for controller to controller, controller to processor, processor to processor, and processor to controller transfers;
• local laws affecting compliance with the SCCs' Clauses;
• obligations of the data importer in case of government access requests;
• use of sub-processors within controller to processor and processor to processor transfers;
• data subject rights;
• redress mechanisms;
• liability and indemnification;
• supervision;
• non-compliance with the SCCs Clause and termination; and
• technical and organisational measures to ensure the security of the data, as listed in Annex II.

Furthermore, the SCCs Draft Decision states that, for a period of one year from the date of its entry into force, data exporters and data importers may, for the purpose of Article 46(1) of the GDPR, continue to rely on SCCs set out in Decisions 2001/497/EC and 2010/87/EU for the performance of a contract concluded between them before that date, provided that the contract remains unchanged, with the exception of necessary supplementary measures in order to ensure that the transfer of personal data is subject to appropriate safeguards within the meaning of Article 46(1) of the GDPR.

The SCCs Draft Decision and the Annex will be under consultation until 10 December 2020.

You can access the consultation page and download the SCCs Draft Decision and the Annex here.