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Automatic Processing of Personal Data and its Additional Protocol

should be taken into account

The Commission should consult with

th e

European Data Protection Board when assessing

the level of

protection in third countries or international organisations

Whereas (81b)

Text adopted by Parliament

Consolidated text of the Commission and Council

[The Commission should monitor the functioning of decisions on

the level of protection in a third country or a territory or specified

sector within a third country, or an international organisation,

including decisions adopted on the basis of Article 25(6) or Article

26 (4) of Directive 95/46/EC. The Commission should evaluate,

within a reasonable time, the functioning of the latter decisions and

report any pertinent findings to the Committee within the meaning

of Regulation (EU) No 182/2011 as established under this

Regulation.]

Whereas (82)

Text adopted by Parliament

Consolidated text of the Commission and Council

The Commission may equally recognise that a third country, or a territory

or a processing sector within a third country, or an international

organisation offers no adequate level of data protection. Any legislation

which provides for extra-territorial access to personal data processed in

the Union without authorisation under Union or Member State law

should be considered as an indication of a lack of adequacy.

Consequently the transfer of personal data to that third country should be

prohibited. In that case, provision should be made for consultations

between the Commission and such third countries or international

organisations.

[The Commission may equally

recognise that a third country, or a

territory or a specified

sector within a third country, or an

international organisation offers no adequate level of data

protection

no longer ensures an

adequate level of data protection.

Consequently the transfer of personal data to that third country or

international organisation

should be prohibited, unless the

requirements of Articles 42 to 44 are fulfilled

. In that case, provision

should be made for consultations between the Commission and

such third countries or international organisations. The Commission

should, in a timely manner, inform the third country or international

organisation of the reasons and enter into consultations with it in

order to remedy the situation

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Whereas (83)

Text adopted by Parliament

Consolidated text of the Commission and Council

In the absence of an adequacy decision, the controller or processor should

take measures to compensate for the lack of data protection in a third

country by way of appropriate safeguards for the data subject. Such

appropriate safeguards may consist of making use of binding corporate

rules, standard data protection clauses adopted by the Commission,

standard data protection clauses adopted by a supervisory authority or

contractual clauses authorised by a supervisory authority. Those

appropriate safeguards should uphold a respect of the data subject

rights adequate to intra-EU processing, in particular relating to purpose

limitation, right to access, rectification, erasure and to claim

compensation. Those safeguards should in particular guarantee the

observance of the principles of personal data processing, safeguard data

subject rights and provide for effective redress mechanisms, ensure the

observance of the principles of data protection by design and by default,

guarantee the existence of a data protection officer.

[In the absence of an adequacy decision, the controller or

processor should take measures to compensate for the lack of data

protection in a third country by way of appropriate safeguards for

the data subject. Such appropriate safeguards may consist of

making use of binding corporate rules, standard data protection

clauses adopted by the Commission, standard data protection

clauses adopted by a supervisory authority or ad hoc

contractual

clauses authorised by a supervisory authority, or other suitable and

proportionate measures justified in the light of all the circumstances

surrounding a data transfer operation or set of data transfer

operations and where authorised by a supervisory authority. Those

safeguards should ensure compliance with data protection

requirements and the rights of the data subjects, including the right

to obtain effective administrative or judicial redress. They should

relate in particular to compliance with the general principles relating

to personal data processing, the availability of

enforceable data

subject's rights and of effective legal remedies and the principles of

data protection by design and by default. Transfers

may be carried

out also by public authorities or bodies

with public authorities or

bodies in third countries or with international organisations with

corresponding duties or functions, including on the basis of

provisions to be inserted into administrative arrangements, such as

a memorandum of understanding. The authorisation of the

competent supervisory authority should be obtained when the

safeguards are adduced in non legally binding administrative

arrangements.]

Whereas (84)

Text adopted by Parliament

Consolidated text of the Commission and Council

The possibility for the controller or processor to use standard data

[The possibility for the controller or processor to use standard data

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protection clauses adopted by the Commission or by a supervisory

authority should neither prevent the possibility for controllers or

processors to include the standard data protection clauses in a wider

contract nor to add other clauses or supplementary safeguards as long as

they do not contradict, directly or indirectly, the standard contractual

clauses adopted by a supervisory authority or prejudice the fundamental

rights or freedoms of the data subjects. The standard data protection

clauses adopted by the Commission could cover different situations,

namely transfers from controllers established in the European Union to

controllers established outside the European Union and from

controllers established in the European Union to processors, including

sub-processors, established outside the European Union. Controllers

and processors should be encouraged to provide even more robust

safeguards via additional contractual commitments that supplement

standard protection clauses.

protection clauses adopted by the Commission or by a supervisory

authority should neither prevent the possibility for controllers or

processors to include the standard data protection clauses in a

wider contract, including in a contract between the processor and

another processor,

nor to add other clauses or additional

safeguards

as long as they do not contradict, directly or indirectly,

the standard contractual clauses adopted by the Commission or by

a supervisory authority or prejudice the fundamental rights or

freedoms of the data subjects.]

Whereas (85)

Text adopted by Parliament

Consolidated text of the Commission and Council

A corporate group should be able to make use of approved binding

corporate rules for its international transfers from the Union to

organisations within the same corporate group of undertakings, as long as

such corporate rules include all essential principles and enforceable rights

to ensure appropriate safeguards for transfers or categories of transfers of

personal data.

[A corporate group or a group of enterprises engaged in a joint

economic activity

should be able to make use of approved binding

corporate rules for its international transfers from the Union to

organisations within the same corporate group of undertakings or

group of enterprises

, as long as such corporate rules include

essential principles and enforceable rights to ensure appropriate

safeguards for transfers or categories of transfers of personal

data.]

Whereas (86)

Text adopted by Parliament

Consolidated text of the Commission and Council

Provisions should be made for the possibility for transfers in certain

circumstances where the data subject has given his consent, where the

[Provisions should be made for the possibility for transfers in

certain circumstances where the data subject has given his explicit

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transfer is necessary in relation to a contract or a legal claim, where

important grounds of public interest laid down by Union or Member State

law so require or where the transfer is made from a register established by

law and intended for consultation by the public or persons having a

legitimate interest. In this latter case such a transfer should not involve the

entirety of the data or entire categories of the data contained in the register

and, when the register is intended for consultation by persons having a

legitimate interest, the transfer should be made only at the request of those

persons or if they are to be the recipients, taking into full account the

interests and fundamental rights of the data subject.

consent, where the transfer is necessary

occasional

in relation to a

contract or a legal claim, regardless of whether

in a judicial

procedure or whether in an administrative or any out-of-court

procedure,

including procedures before regulatory bodies.

Provision should also be made for the possibility for transfers

where important grounds of public interest laid down by Union or

Member State law so require or where the transfer is made from a

public or persons having a legitimate interest. In this latter case

such a transfer should not involve the entirety of the data or entire

categories of the data contained in the register and, when the

interest, the transfer should be made only at the request of those

persons or if they are to be the recipients.]

Whereas (87)

Text adopted by Parliament

Consolidated text of the Commission and Council

These derogations should in particular apply to data transfers required and

necessary for the protection of important grounds of public interest, for

example in cases of international data transfers between competition

authorities, tax or customs administrations, financial supervisory

authorities, between services competent for social security matters or for

public health, or to competent public authorities for the prevention,

investigation, detection and prosecution of criminal offences, including

for the prevention of money laundering and the fight against terrorist

financing. A transfer of personal data should equally be regarded as

lawful where it is necessary to protect an interest which is essential for

the data subject’s or another person’s life, if the data subject is

incapable of giving consent. Transferring personal data for such

important grounds of public interest should only be used for occasional

transfers. In each and every case, a careful assessment of all

circumstances of the transfer should be carried out.

[These derogations

rules

should in particular apply to data transfers

required and necessary for the protection of important grounds

important

reasons

of public interest, for example in cases of

international data transfers

exchange

between competition

authorities, between

tax or customs administrations, between

financial supervisory authorities, between services competent for

social security matters or to competent authorities for the

prevention, investigation, detection and prosecution of criminal

offences

or for public health

, for example in case of contact tracing

for contagious diseases or in order to reduce and/or eliminate

doping in sport. A transfer of personal data should equally be

regarded as lawful where it is necessary to protect an interest

which is essential for the data subject’s or another person’s

v ital

interests, including physical integrity or

life, if the data subject is

incapable of giving consent.

In the absence of an adequacy

decision, Union law or Member State law may, for important

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reasons of public interest, expressly set limits to the transfer of

specific categories of data to a third country or an international

organization. Member States should notify such provisions to the

Commission.]

Whereas (88)

Text adopted by Parliament

Consolidated text of the Commission and Council

For the purposes of processing for historical, statistical and scientific

research purposes, the legitimate expectations of society for an increase of

knowledge should be taken into consideration.

[Transfers which cannot be qualified as frequent or massive

large

scale or frequent

, could also be possible for the purposes of the

legitimate interests pursued by the controller or the processor,

when they have

those interests are not overridden by the interests

or rights and freedoms of the data subject and when the controller

or the processor has

assessed all the circumstances surrounding

the data transfer. The controller or processor should give particular

consideration to the nature of the data, the purpose and duration of

the proposed processing operation or operations, as well as the

situation in the country of origin, the third country and the country of

final destination, and adduced suitable safeguards to protect

fundamental rights and freedoms of natural persons with respect to

processing of their personal data

For the purposes of processing

for historical, statistical and scientific research purposes, the

legitimate expectations of society for an increase of knowledge

should be taken into consideration. To assess whether a transfer is

large scale or frequent the amount of personal data and number of

data subjects should be taken into account and whether the

transfer takes place on an occasional or regular basis.]

Whereas (89)

Text adopted by Parliament

Consolidated text of the Commission and Council

In any case, where the Commission has taken no decision on the adequate

level of data protection in a third country, the controller or processor

should make use of solutions that provide data subjects with a legally

[In any case, where the Commission has taken no decision on the

adequate level of data protection in a third country, the controller or

processor should make use of solutions that provide data subjects

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binding guarantee that they will continue to benefit from the fundamental

rights and safeguards as regards processing of their data in the Union once

this data has been transferred, to the extent that the processing is not

massive, not repetitive and not structural. That guarantee should

include financial indemnification in cases of loss or unauthorised

access or processing of the data and an obligation, regardless of

national legislation, to provide full details of all access to the data by

public authorities in the third country.

with a guarantee that they will continue to benefit from the

fundamental rights and safeguards as regards processing of their

data in the Union once this data has been transferred.]

Whereas (90)

Text adopted by Parliament

Consolidated text of the Commission and Council

Some third countries enact laws, regulations and other legislative

instruments which purport to directly regulate data processing activities of

natural and legal persons under the jurisdiction of the Member States. The

extraterritorial application of these laws, regulations and other legislative

instruments may be in breach of international law and may impede the

attainment of the protection of individuals guaranteed in the Union by this

Regulation. Transfers should only be allowed where the conditions of this

Regulation for a transfer to third countries are met. This may inter alia be

the case where the disclosure is necessary for an important ground of

public interest recognised in Union law or in a Member State law to which

the controller is subject. The conditions under which an important ground

of public interest exists should be further specified by the Commission in

a delegated act. In cases where controllers or processors are confronted

with conflicting compliance requirements between the jurisdiction of

the Union on the one hand, and that of a third country on the other, the

Commission should ensure that Union law takes precedence at all

times. The Commission should provide guidance and assistance to the

controller and processor, and it should seek to resolve the jurisdictional

conflict with the third country in question.

[Some third countries enact laws, regulations and other legislative

instruments which purport to directly regulate data processing

activities of natural and legal persons under the jurisdiction of the

Member States. The extraterritorial application of these laws,

regulations and other legislative instruments may be in breach of

international law and may impede the attainment of the protection

of individuals guaranteed in the Union by this Regulation. Transfers

should only be allowed where the conditions of this Regulation for a

transfer to third countries are met. This may inter alia be the case

where the disclosure is necessary for an important ground of public

interest recognised in Union law or in a Member State law to which

the controller is subject. The conditions under which an important

ground of public interest exists should be further specified by the

Commission in a delegated act.]

Whereas (91)

Text adopted by Parliament

Consolidated text of the Commission and Council

[not amended]

When personal data moves across borders it may put at increased risk the

ability of individuals to exercise data protection rights in particular to

protect themselves from the unlawful use or disclosure of that

information. At the same time, supervisory authorities may find that they

are unable to pursue complaints or conduct investigations relating to the

activities outside their borders. Their efforts to work together in the cross-

border context may also be hampered by insufficient preventative or

remedial powers, inconsistent legal regimes, and practical obstacles like

resource constraints. Therefore, there is a need to promote closer co-

operation among data protection supervisory authorities to help them

exchange information and carry out investigations with their international

counterparts.

[When personal data moves across borders outside the Union

may put at increased risk the ability of individuals to exercise data

protection rights in particular to protect themselves from the

unlawful use or disclosure of that information. At the same time,

supervisory authorities may find that they are unable to pursue

complaints or conduct investigations relating to the activities

outside their borders. Their efforts to work together in the cross-

border context may also be hampered by insufficient preventative

or remedial powers, inconsistent legal regimes, and practical

obstacles like resource constraints. Therefore, there is a need to

promote closer co-operation among data protection supervisory

authorities to help them exchange information and carry out

investigations with their international counterparts. For the

purposes of developing international co-operation mechanisms to

facilitate and provide international mutual assistance for the

enforcement of legislation for the protection of personal data, the

Commission and the supervisory authorities should exchange

information and cooperate in activities related to the exercise of

their powers with competent authorities in third countries, based on

reciprocity and in compliance with the provisions of this Regulation,

including those laid down in Chapter V.]

Whereas (92)

Text adopted by Parliament

Consolidated text of the Commission and Council

The establishment of supervisory authorities in Member States, exercising

their functions with complete independence, is an essential component of

the protection on individuals with regard to the processing of their

personal data. Member States may establish more than one supervisory

authority, to reflect their constitutional, organisational and administrative

structure. An authority shall have adequate financial and personal

resources to fully carry out its role, taking into account the size of the

[The establishment of supervisory authorities in Member States,

empowered to perform their

tasks

and

exercise their functions with

complete independence, is an essential component of the protection of

individuals with regard to the processing of their personal data. Member

States may establish more than one supervisory authority, to reflect their

constitutional, organisational and administrative structure.

population and the amount of personal data processing.

Whereas (92a)

Text adopted by Parliament

Consolidated text of the Commission and Council

The independence of supervisory authorities should not mean that the

supervisory authorities cannot be subjected to control or monitoring

mechanism regarding their financial expenditure

. Neither does it imply

that supervisory authorities cannot be subjected to judicial review.

Whereas (93)

Text adopted by Parliament

Consolidated text of the Commission and Council

[not amended]

Where a Member State establishes several supervisory authorities, it

should establish by law mechanisms for ensuring the effective

participation of those supervisory authorities in the consistency

mechanism. That Member State should in particular designate the

supervisory authority which functions as a single contact point for the

effective participation of those authorities in the mechanism, to ensure

swift and smooth co-operation with other supervisory authorities, the

European Data Protection Board and the Commission.

Where a Member State establishes several supervisory authorities, it

should establish by law mechanisms for ensuring the effective

participation of those supervisory authorities in the consistency

mechanism. That Member State should in particular designate the

supervisory authority which functions as a single contact point for the

effective participation of those authorities in the mechanism, to ensure

swift and smooth co-operation with other supervisory authorities, the

European Data Protection Board and the Commission.

Whereas (94)

Text adopted by Parliament

Consolidated text of the Commission and Council

Each supervisory authority should be provided with the adequate financial

and human resources, paying particular attention to ensuring adequate

technical and legal skills of staff, premises and infrastructure, which are

necessary for the effective performance of their tasks, including for the

tasks related to mutual assistance and co-operation with other supervisory

authorities throughout the Union.

Each supervisory authority should be provided with the adequate

financial

and human resources, premises and infrastructure, which is

are

necessary

for the effective performance of their tasks, including for the tasks related

to mutual assistance and co-operation with other supervisory authorities

throughout the Union. Each supervisory authority should have a separate

annual budget, which may be part of the overall state or national budget.

Whereas (95)

Text adopted by Parliament

Consolidated text of the Commission and Council

The general conditions for the members of the supervisory authority

should be laid down by law in each Member State and should in particular

provide that those members should be appointed by the parliament or the

government of the Member State taking due care to minimise the

possibility of political interference, and include rules on the personal

qualification of the members, the avoidance of conflicts of interest and

the position of those members.

The general conditions for the member or

members of the supervisory

authority should be laid down by law in each Member State and should in

particular provide that those members should be either appointed by the

parliament and/

or the government or the head of State

of the Member

State and include rules on the personal qualification of the members and

the position of those members

or by an independent body entrusted by

Member State law with the appointment by means of a transparent

procedure

In order to ensure the independence of the supervisory authority, the

member or members should refrain from any action incompatible with

their duties and should not, during their term of office, engage in any

incompatible occupation, whether gainful or not. They should behave,

after their term of office, with integrity and discretion as regards the

acceptance of appointments and benefits

Whereas (95a)

Text adopted by Parliament

Consolidated text of the Commission and Council

Each supervisory authority should be competent on the territory of its own

Member State to exercise the powers and to perform the tasks conferred

on it in accordance with this Regulation. This should cover in particular

the processing in the context of the activities of an establishment of the

controller or processor on the territory of its own Member State,

processing affecting data subjects on its territory or processing carried out

by a controller not established in the European Union when targeting data

subjects residing in its territory

. This should include dealing with

complaints lodged by a data subject, conducting investigations on the

application of the Regulation, promoting public awareness of the risks,

rules, safeguards and rights in relation to the processing of personal data.

Whereas (96)

Text adopted by Parliament

Consolidated text of the Commission and Council

[not amended]

The supervisory authorities should monitor the application of the

provisions pursuant to this Regulation and contribute to its consistent

application throughout the Union, in order to protect natural persons in

relation to the processing of their personal data and to facilitate the free

flow of personal data within the internal market. For that purpose, the

supervisory authorities should co-operate with each other and the

Commission.

The supervisory authorities should monitor the application of the

provisions pursuant to this Regulation and contribute to its consistent

application throughout the Union, in order to protect natural persons in

relation to the processing of their personal data and to facilitate the free

flow of personal data within the internal market. For that purpose, this

Regulation should oblige and empower

the supervisory authorities to co-

operate with each other and the Commission, without the need for any

agreement between Member States on the provision of mutual assistance

or on such cooperation

Whereas (96a)

Text adopted by Parliament

Consolidated text of the Commission and Council

[Where the processing of personal data

takes place

in the context of the

activities of an establishment of a controller or processor in the Union and

the controller or processor is established in more than one Member State

or where processing

taking place in the context of the activities of a single

establishment of a controller or processor in the Union

substantially

affects or is likely to affect substantially data subjects in more than one

Member State,

the supervisory authority for the main establishment of the

controller or processor or for the single establishment of the controller or

processor

should act as lead authority. Within its tasks to issue guidelines

on any question covering the application of this Regulation, the European

Data Protection Board may issue guidelines in particular on the criteria to

be taken into account in order to ascertain whether the processing in

question substantially affects data subjects in more than one Member

State.]

Whereas (96b)

Text adopted by Parliament

Consolidated text of the Commission and Council

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