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EDPB adopts Guidelines on the interplay between Art. 3 and Chapter V GDPR

The Guidelines aim to assist controllers and processors in the EU in identifying whether a processing operation constitutes an international transfer, and to provide a common understanding of the concept of international transfers. 

EDPB

Brussels, 19 November – During its plenary session, the EDPB adopted Guidelines on the interplay between Art. 3 and Chapter V GDPR. By clarifying the interplay between the territorial scope of the GDPR (Art. 3) and the provisions on international transfers in Chapter V, the Guidelines aim to assist controllers and processors in the EU in identifying whether a processing operation constitutes an international transfer, and to provide a common understanding of the concept of international transfers. 

The Guidelines specify three cumulative criteria that qualify a processing as a transfer: (1) the data exporter (a controller or processor) is subject to the GDPR for the given processing; (2) the data exporter transmits or makes available the personal data to the data importer (another controller, joint controller or processor); (3) the data importer is in a third country or is an international organisation.

The processing will be considered a transfer, regardless of whether the importer established in a third country is already subject to the GDPR under Art. 3 GDPR. However, the EDPB considers that collection of data directly from data subjects in the EU at their own initiative does not constitute a transfer.

EDPB Chair Andrea Jelinek added: “These Guidelines provide a consistent interpretation of the concept of “international transfers” and clarify that, when a data importer is subject to the GDPR, the obligations under Chapter V GDPR apply both to the transfer from the EU to the importer and to any further transfer that the importer undertakes”.

The Guidelines will be subject to public consultation until the end of January.

Read more here.

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