Q&As

Are the EU approved Model Clauses for the transfer of data outside EEA valid under the General Data Protection Regulation (GDPR)? And is there any possible conflict between the terms of those Model Clauses and the requirements under the GDPR?

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Published on LexisPSL on 06/12/2017

The following Information Law Q&A provides comprehensive and up to date legal information covering:

  • Are the EU approved Model Clauses for the transfer of data outside EEA valid under the General Data Protection Regulation (GDPR)? And is there any possible conflict between the terms of those Model Clauses and the requirements under the GDPR?
  • Further reading

In answering this Q&A, we assume the EU Standard Contractual Clauses (also known as Model Clauses) in the context of controller to processor transfers which are solely subject to the General Data Protection Regulation (GDPR), Regulation (EU) 2016/679, as it will apply in the UK (from 25 May 2018) prior to the UK leaving the EU and/or EEA (Brexit) (and have not considered any specific EU Member State laws or the position post-Brexit) are being referred to. In answering this Q&A, we have limited our research to cover 2010 Controller to Processor Model Clauses approved by the European Commission (see Precedent: Standard contractual clauses—set II—controller to processor) and have focused solely on the perspective of the controller.

The GDPR, Regulation (EU) 2016/679, will apply from 25 May 2018 and will repeal the current Directive 95/46/EC,the Data Protection Directive.

Article 25 of Directive 95/46/EC prohibits controllers in EU Member States:

  1. from transferring personal data to any territory outside the EEA (being the Member States of the EU and Iceland, Liechtenstein and Norway)

  2. unless an ‘adequate’ level of privacy protection is ensured for the data transferred

As further explained in Practice Note: International transfers of personal data under the DPA 1998 [Archived], the use of Model Clauses is one of the possible ‘adequacy solutions’ to make a transfer outside the EEA lawful under Directive 95/46/EC.

Article 26(2) of Directive 95/46/EC provides that:

‘Without

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