EU: EDPB and EDPS publish joint opinion on SCCs, call for clarification
The European Data Protection Board ('EDPB') published, on 18 January 2021, the EDPB and European Data Protection Supervisor ('EDPS') joint opinions on the two of the European Commission's draft Standard Contractual Clauses ('SCCs'), with one opinion on the draft SCCs for contracts between controllers and processors ('the Controller-Processor SCCs Opinion') and one opinion on the draft SCCs for the transfer of personal data to third countries ('the Third Country Transfer SCCs Opinion'), in addition to annexes with annotated versions of each set of the Commission's draft SCCs containing specific comments and suggested changes.
In particular, the Controller-Processor SCCs Opinion highlights, among other things, that the Commission's decision must clearly articulate the differences between the SCCs for controllers and processors and the SCCs for transfers to third countries as well as clarify the types of clauses that would contradict directly or indirectly the SCCs. In addition, with respect to the clause referring to data subject rights, the EDPB and the EDPS proposed further clarifications on, among other things, the title of the clause and the fact that the responses to data subjects shall be made in accordance with the controller's instructions.
In addition, the Third Country Transfer SCCs Opinion outlines and explains the main clauses addressed in the SCCs on, among other things, transparency, controller to controller transfers, the security of processing as well as documentation and compliance. Moreover, in their Third Country Transfer SCCs Opinion, the EDPB and the EPDS called for more clarity on some aspects of compliance with the data importer's commitments, noting that even if access to data by public authorities is not envisaged by the legal framework it is still possible in practice, as well as that there is no express legal basis in the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR') for supervisory authorities providing consultation on supplementary measures adopted in the context of data transfers.