European Union: EDPB Adopts Final Guidelines On GDPR Extra-Territoriality

Last Updated: 4 December 2019
Article by Miriam Everett, Lauren Hudson and Charlie Willett
Most Read Contributor in UK, November 2019

Almost exactly a year after publishing its draft version, the EDPB has adopted its final guidelines on Article 3 of the GDPR and the extra-territorial scope of the legislation. The adopted guidelines don't differ substantially from the consultation draft but include a number of clarifications and new examples. Some of the key takeaways are:

  • Article 3 aims to determine whether a particular processing activity is within the scope of the GDPR and not whether an entity is within the scope of the GDPR (i.e. a non-EU controller can be caught with respect to some data and processing but that does not necessarily mean the entire organisation and all its data is subject to the GDPR);
  • Article 3(2) only covers processing where the controller or processor is intentionally targeting individuals; inadvertent or incidental contact with data subjects within the European Union is not enough to trigger this Article (i.e. confirmation that the capture of non-EU people's data whilst they happen to be on holiday in the EU is probably not going to trigger Article 3(2)); and
  • A new section of guidance concludes that where a controller is consider under Article 3(2) to be "targeting" data subjects in the European Union, that any processor engaged by the controller in respect of such processing will also be caught by Article 3(2) and therefore subject to the GDPR (i.e. one of the few examples of when a processor can be caught by Article 3(2)).

Whilst helpful to have the final guidance, it is important to note that further clarity is still required in some areas, in particular the interplay between international data transfers and the scope of Article 3.


Following public consultation, the European Data Protection Board (the "EDPB") has recently adopted guidelines on the territorial scope of the GDPR, at its fifteenth plenary session earlier this month. As we noted in our previous post on the draft guidance, whilst the draft guidance on this key question was welcome, there were still outstanding questions which remained unanswered.

Article 3: Territorial Scope of the GDPR

By way of a reminder, the GDPR seeks (via Article 3) to extend its reach beyond European borders, making non-EU organisations directly subject to its obligations when processing personal data either:

  • in the context of an establishment of a controller or a processor in the EU (Article 3(1)); or
  • relating to the offer of goods or services to individuals in the EU or the monitoring of their behaviour (Article 3(2)).

The emphasis highlighted above demonstrates the broad drafting of the legislation and potentially extremely wide application of the GDPR to organisations located outside of the EU. This has left many organisations worldwide in a state of uncertainty as to the fundamental application of this important legislation to their activities.

The EDPB guidelines aim to "clarify and ensure consistent application of these criteria", and include a wide range of examples which may arise to provide a steer on how such scenarios should be treated.

Clarifications in the adopted guidelines

Whilst the EDPB has not substantially amended the guidance between its draft and adopted form, there are a number of helpful clarifications and further examples contained in the adopted guidelines:

In respect of Article 3(1)

Perhaps most importantly, the EDPB has reminded organisations that Article 3 aims to determine whether a particular processing activity falls within the scope of the GDPR, rather than determining whether an entity as a whole is subject to the GDPR. On a practical level, this confirms that, just because an organisation located outside of the EU is caught with respect to the processing of certain data sets, does not mean that the entire organisation and all data sets are also subject to the GDPR. By way of example, an Australian entity providing a central HR function for its group, including EU entities, could be subject to the GDPR with respect to the EU data but this would not mean that it was subject to the GDPR with respect to its Australian employees' data.

The EDPB has also confirmed that the mere presence of an EU employee or agent is not sufficient to trigger the application of the GDPR so long as the relevant processing is not being carried out in the context of the activities of the EU-based employee.

A controller cannot "remove" processing from the scope of the GDPR by virtue of instructing a processor who is not established in the EU; the EDPB considers that the controller will remain subject to Article 3(1) and therefore that whilst the processor itself is not directly caught by the GDPR, it will be indirectly caught by virtue of the fact that the controller will still be obliged to, for example, put the Article 28 clauses in place with its extra-EU processor.

In respect of Article 3(2)

As with Article 3(1), the EDPB emphasises that the targeting can apply to processing activities carried out by a controller or processor outside the Union and that a controller may be subject to the GDPR in relation to some processing activities, but not others. Again, this would mean that a Singapore entity selling goods to individuals in the EU may be subject to the GDPR with respect to its EU customers' data but not with respect to its Singapore customers' data.

The EDPB considers that, in relation to processing activities related to the offer of services, Article 3(2) is only aimed at activities which intentionally target individuals in the EU, rather than any inadvertent or incidental activities. In this regard, the EDPB has included a new example relating to an Australian company offering mobile news updates to customers who must have an Australian mobile number – the fact that an Australian subscriber happens to subscribe when he is on holiday in Germany does not bring this processing activity within the scope of the GDPR. We assume that this would also extend to an individual living in Europe who still happened to have an Australian phone subscription. The key here being that the service is targeted only at Australian individuals.

The adopted guidance also contains a new section relating to the application of Article 3(2) to processors who are not established within the European Union. Previously, it had been unclear how Article 3(2) could actually apply to processors.

  • The EDPB considers that, in order to determine whether processing activities undertaken by processors are subject to Article 3(2) it is "necessary to look at whether the processing activities by the processor "are related" to the targeting of the controller" (emphasis added) – and that where the processing by the processor is related to the controller's targeting, that any processor instructed to carry out that processing activity on the controller's behalf will fall within the scope of Article 3(2);
  • The EDPB's rationale for this is that the targeting activity can only be made by a controller and not a processor (i.e. otherwise Article 3(2) could never apply to processors);
  • By way of an example, this seems to mean that if a Japanese controller was targeting individuals in the EU and instructed a Japanese processor to manage payments coming from its EU customers, the Japanese processor would be directly subject to Article 3(2).

In practice, this appears to suggest that there is an element of due diligence required by processors to determine whether their controller is in fact caught by Article 3(2). We can expect to see processors taking an even more proactive role in discussions around data protection before executing contracts if the EDPB considers that in offering goods or services on behalf of or on the instruction of a controller caught by Article 3(2) will then automatically bring that processor within the purview of the GDPR. Indeed, we may yet see extra-EU processors amend their scope of services or pricing of services depending on whether their controller client is considered to be within Article 3(2).

EU Representatives

We note that with respect to the guidance on EU representatives, the EDPB has strengthened its guidance that the positions of EU representatives and Data Protection Officers are not compatible because of the independence requirements for Data Protection Officers. The EDPB has also clarified that there is no requirement for a controller or processor to appoint several representatives for each separate processing activity: only one representative needs to be appointed.

As regards liability of the representative, the EDPB has confirmed that "the GDPR does not establish a substitutive liability of the representative in place of the controller or processor that it represents in the Union", which appears to suggest that a supervisory authority could commence enforcement action against both the relevant controller or processor and its representative. Whilst not entirely clear on this point, the guidance does reflect that the one of purposes of the representative was to "ensure effective enforcement of the GDPR" against controllers and processors who are caught by Article 3(2), which may offer a degree of comfort that the EDPB is not intending that supervisory authorities will enforce against both entities. We note that this guidance should be considered by both controllers/processor and potential representatives when negotiating their representative agreements, ensuring that both parties understand their liability position with respect to each other, no matter who the supervisory authority attempts to enforce against.

Clarity not completely achieved?

Whilst the clarifications in the final guidance are helpful, it is clear that there are still large areas where the potential application of the GDPR is unclear and organisations will need to continue to make a judgement call, whilst hopefully documenting their reasons should that judgement call ever be challenged.

One notable area of remaining uncertainty relates to the issue of international data transfers. It is still unclear how controllers subject to Article 3(2) (and therefore already outside the EEA) should effect onward transfers of data. However, the EDPB has stated that it will assess the interplay between the territorial scope of the GDPR under Article 3 and provisions on international data transfers under Chapter V, and may issue additional guidance on this matter. We consider that such guidance would be welcomed and provide clarity on a practical issue that arises for many organisations.

Overall, there is a significant emphasis that application of Article 3 of the GDPR should be dealt with on a case-by-case basis with respect to each processing activity undertaken by the controller of processor. As such, organisations should look to the examples provided by the guidelines when assessing whether their activities are likely to fall within the scope of the GDPR.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions