- ⚡️ Find out why 60% of EU companies risk sanctions on their transfers
- 🛡️ Master the 3 legal mechanisms that secure your data internationally
- 💡 Deploy the strategy that protected a retail chain from sanctions in 2020
- 🔄 Take advantage of the new CCTs to transform your constraints into opportunities
- 🚀 Optimize your transfers thanks to the 13 countries recognized as “safe” by the EU
- ✨ Secure your compliance with our post-Privacy Shield 2024 method
The General Data Protection Regulation (GDPR) has profoundly changed the European digital landscape since its entry into force in 2018. One of the most crucial aspects of this regulation concerns the transfer of personal data outside the European Union ( EU). I intend to explore with you the essential rules that govern these transfers, in order to help you navigate this complex but fundamental area for the protection of the privacy of European citizens.
The fundamentals of data transfer outside the EU
The GDPR establishes as a basic principle that personal data must, as much as possible, remain within the European Union. This approach aims to ensure a high level of protection of the personal information of European residents. However, in our interconnected world, there are situations where data transfer to third countries is necessary.
The main objective of the GDPR regarding international transfers is to ensure uniform level of protection throughout the processing of data, regardless of their geographical location. This requirement applies to all actors involved in processing, whether located within the EU or outside.
It is important to note that in 2021, the European Commission reported that over 60% of European companies were transferring data to third countries, highlighting the critical importance of understanding and complying with these rules.
Here are the key principles to remember:
- Data protection must be maintained at a level equivalent to that of the EU
- Transfers must be framed by appropriate safeguards
- Transparency towards data subjects is paramount
- The responsibility for compliance with these rules lies with the data controller
Legal mechanisms for data transfer
The GDPR provides several mechanisms for the legal transfer of personal data outside the European Union. These mechanisms aim to ensure that data benefits from adequate protection once transferred. I will present the main tools at your disposal.
Adequacy decisions are the first mechanism. The European Commission assesses the level of data protection offered by certain countries and can declare them “adequate”. To date, 13 countries benefit from this recognition, including Switzerland, Japan and the United Kingdom since 2021. Transfers to these countries are considered safe and do not require specific authorization.
Standard Contractual Clauses (SCCs) are another essential tool. These are contract models provided by the European Commission, which legally govern data transfers. They impose strict obligations on the parties involved in the transfer, thus ensuring a high level of protection.
Binding Corporate Rules (BCRs) are particularly suitable for multinational groups. They allow intra-group transfers by establishing an internal data protection policy, approved by the European supervisory authorities.
Here is a summary table of the main mechanisms:
| Mechanism | Description | Benefits |
|---|---|---|
| Adequacy decision | Official recognition of the level of protection of a third country | Simplified transfers, without specific authorization |
| Standard Contractual Clauses | Standardized contracts to govern transfers | Flexibility of use, solid legal guarantees |
| Binding Corporate Rules | Internal policy for intra-group transfers | Adapted to multinationals, global consistency |
Exemptions and special cases
Although the previously mentioned mechanisms cover the majority of situations, the GDPR also provides exemptions for specific cases where data transfer may be authorized in the absence of an adequacy decision or appropriate safeguards. These exemptions must be interpreted strictly and only apply in limited circumstances.
One of the most common exemptions is the explicit consent of the person concerned. However, it is crucial to note that this consent must be free, specific, informed and unequivocal. The individual must be fully informed of the potential risks associated with the transfer of their data to a country that does not benefit from adequate protection.
Other exemptions include:
- The necessity of the transfer for the execution of a contract
- Important reasons of public interest
- Defense of rights in court
- Protection of the vital interests of the person concerned
It is important to emphasize that these exemptions should not become the norm for data transfers. They are designed for exceptional situations and cannot justify massive or structural transfers.
As a data protection consultant, I have often been confronted with situations where companies thought they could systematically rely on these exemptions. I particularly remember a case where an innovative start-up wanted to use consent as the basis for all its data transfers to the United States. I had to explain to them that this approach was not sustainable in the long term and guided them towards the implementation of Standard Contractual Clauses, thus providing a more solid legal basis for their operations.
Practical implications and recommendations
Complying with non-EU data transfer rules requires a methodical and proactive approach. I highly recommend following these essential steps:
- Map your data flows : Identify precisely what data is transferred, to which countries, and for what purposes.
- Assess the level of protection recipient countries: Consult the adequacy decisions of the European Commission and analyze local legislation.
- Choosing the Appropriate Transfer Mechanism : Depending on your situation, opt for CCT, BCR or other suitable guarantees.
- Implement technical and organizational measures : Ensure your systems and processes ensure the security of transferred data.
- Document your steps : Keep a detailed record of your transfers and the measures put in place to protect them.
It is also crucial to transparently inform data subjects about transfers of their data. This information should be clear, concise and easily accessible, for example in your privacy policy.
In 2020, during a mission for a large retail chain, I discovered that their implementation of Google Tag Manager was not GDPR compliant regarding international transfers. We worked together to implement a server-side tracking solution, thus reducing the exposure of user data while maintaining the effectiveness of their marketing strategy.
I cannot stress enough the importance of remaining vigilant in the face of regulatory and jurisprudential developments. The invalidation of the Privacy Shield in 2020 was a reminder of how dynamic and subject to rapid change this area is. Constant legal monitoring is essential to maintain your compliance over time.
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