Author: Peter Schantz

 

1. In the absence of an adequacy decision pursuant to Article 45(3), or of appropriate safeguards pursuant to Article 46, including binding corporate rules, 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:

(a) 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;

(b) 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;

(c) 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;

(d) the transfer is necessary for important reasons of public interest;

(e) the transfer is necessary for the establishment, exercise or defence of legal claims;

(f) 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;

(g) 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.

Where a transfer could not be based on a provision in Article 45 or 46, including the provisions on binding corporate rules, and none of the derogations for a specific situation referred to in the first subparagraph of this paragraph is applicable, a transfer to a third country or an international organisation may take place only if the transfer is not repetitive, concerns only a limited number of data subjects, is necessary for the purposes of compelling legitimate interests pursued by the controller which are not overridden by the interests or rights and freedoms of the data subject, and the controller has assessed all the circumstances surrounding the data transfer and has on the basis of that assessment provided suitable safeguards with regard to the protection of personal data. The controller shall inform the supervisory authority of the transfer. The controller shall, in addition to providing the information referred to in Articles 13 and 14, inform the data subject of the transfer and on the compelling legitimate interests pursued.

2. A transfer pursuant to point (g) of the first subparagraph of paragraph 1 shall not involve the entirety of the personal data or entire categories of the personal data contained in the register. Where the register is intended for consultation by persons having a legitimate interest, the transfer shall be made only at the request of those persons or if they are to be the recipients.
3. Points (a), (b) and (c) of the first subparagraph of paragraph 1 and the second subparagraph thereof shall not apply to activities carried out by public authorities in the exercise of their public powers.
4. The public interest referred to in point (d) of the first subparagraph of paragraph 1 shall be recognised in Union law or in the law of the Member State to which the controller is subject.
5. In the absence of an adequacy decision, Union or Member State law may, for important reasons of public interest, expressly set limits to the transfer of specific categories of personal data to a third country or an international organisation. Member States shall notify such provisions to the Commission.
6. The controller or processor shall document the assessment as well as the suitable safeguards referred to in the second subparagraph of paragraph 1 of this Article in the records referred to in Article 30.

 

I. Purpose

Like Art. 26 para. 1 DPD, Art. 49 contains an exhaustive list of exceptional cases in which transfers to a third country are permitted although an adequate level of data protection is not guaranteed there. From the perspective of the data subject, such a transfer poses a high risk,[1] particularly since the processing is completely at the responsibility of the data exporter.[2] This must be taken into account when interpreting Art. 49 (→ mn. 6). Nevertheless, the exceptions of Art. 49 are highly relevant in everyday processing (e.g. flight bookings, mail order business or payment transactions).[3]

II. Legislative history

Art. 49 is based on Art. 26 para. 1 DPD. The draft of the Commission, with some clarifications, remained largely unchanged during the legislative process.

In para. 1 subpara. 1 lit. a, at the Council’s request it was inserted that consent must be explicit. Furthermore, it was clarified that the data subject must be informed not only about existing, but also about possible risks before consenting to the transfer.[4] In addition, it was explicitly ruled out that public authorities can base a transfer to a third country on the consent of the data subject (para. 3).

A topic of intensive negotiations was the newly introduced balancing exception in para. 1 subpara. 2. The Commission had proposed that transmission should be permitted where it was necessary for the legitimate interests of the person responsible and if additional guarantees were available (Art. 44 para. 1 lit. h Commission draft). The EP completely rejected such an additional exception. The Council was also critical and demanded that the exception be limited to individual cases and that the interests of the data subject be taken into account. In the trialogue, the Commission’s draft was further narrowed beyond the Council’s requests. The transmission must now be necessary for the protection of compelling legitimate interests of the controller. As additional safeguards, the data subject and the SA must be informed.

At the request of the Council, Member States were allowed to prohibit the transfer of certain categories of data to third countries (para. 5). Art. 26 para. 1 DPD had already provided for a similar reference to national law. The proposal of the Commission to empower the Commission to define by delegated acts the meaning of “important reasons of public interest” (Art. 44 para. 7 Commission draft) was not accepted by the Council and the EP.

 

 

 

 

 

 

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[1]Art. 29 WP 114, Working document on a common interpretation of Article 26(1) of Directive, adopted on 25 November 2005, 7.

[2]Schröder in Kühling/Buchner, Art. 49 para. 1.

[3]Schröder in Kühling/Buchner, Art. 49 para. 2; Pauly in Paal/Pauly, Art. 49 para. 2.

[4]Schröder in Kühling/Buchner, Art. 49 para. 5 (reading the modification as limitation of the risks the data subject has to be informed about).