Q&As

Can the European Commission Standard Contractual Clauses (Controller to Processor) template be used for data being transferred from one controller to two data processors based on a tri-party commercial agreement, or should two separate templates be used?

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Published on LexisPSL on 02/09/2016

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

  • Can the European Commission Standard Contractual Clauses (Controller to Processor) template be used for data being transferred from one controller to two data processors based on a tri-party commercial agreement, or should two separate templates be used?

This Q&A covers a situation where the transfer and processing of data is solely subject to English law and the UK Information Commissioner's Office (ICO) is the only relevant data protection authority, and to current English law. This Q&A does not consider the implications of the forthcoming General Data Protection Regulation (GDPR), which will only be applicable from 25 May 2018 (see Practice Note: Introduction to the EU GDPR and UK GDPR).

The EU Standard Contractual Clauses, which have been approved by the European Commission (also known as the Model Clauses), permit organisations to transfer personal data to a non-EEA third country which has not received an adequacy decision from the European Commission.

Clause 10 of the 2010 Model Clauses states:

'The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.'

The latter part of this clause indicates that the Model Clauses can be amended in some circumstances. For an examination of the extent to which Model Clauses can be amended, see News Analysis: Can you amend EU Model Clauses? which supports the proposition you can amend the Model Clauses, provided your terms are purely commercial in nature and do not impact the protect

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