- EDPB Opinion 14/2019 and the drafting of Article 28 compliant clauses
- What is the background to the Opinion?
- What was the EDPB’s view of the Draft SCCs?
- What is the relevance of the Opinion for Mandatory Processor Provisions?
- What changes did the EDPB recommend that may be generally relevant to Mandatory Processor Provisions?
- Clauses which merely restate the provisions of Articles 28(3) and 28(4) are not sufficient
- Using the same wording as the GDPR
- Authorisation of sub-processors and changes to authorised sub-processors
- Confidentiality obligations
- Liability, governing law and jurisdiction provisions
- Processor’s liability for sub-processors
- Assistance with data subject rights
- Other assistance
- Inspections and audits
- Unlawful instructions
- International transfers
- What did the EDPB recommend that appear to be ‘nice to haves’?
- Third party beneficiary rights for the controller in respect of sub-processor arrangements
- Termination provisions
- What did the EDPB suggest that aligns with previous guidance or market practice?
- Commercial provisions relating to the allocation of costs for assistance are not subject to the GDPR
- Details of processing activities
- Termination of the Mandatory Processor Provisions
- What will be the impact on the drafting of Mandatory Processor Provisions?
Information Law analysis: At its twelfth plenary session, the European Data Protection Board (EDPB) issued Opinion 14/2019 on draft standard contractual clauses (SCCs) submitted by the Danish supervisory authority (Danish SA). That Opinion, which has so far received little attention within the data protection community, provides a first glimpse of the EDPB’s thinking on SCCs under Article 28 of the General Data Protection Regulation, Regulation (EU) 2016/679 (GDPR) and, by extension, on the drafting of contractual provisions for compliance with the mandatory requirements of Article 28 more generally. This News Analysis highlights some of the key points in the Opinion and considers its potential implications.
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