European Union: GDPR Update: Transfer Of Personal Data (Outside The EEA)

Last Updated: 27 November 2017
Article by Marc Elshof, Barry Breedijk and Celine Van Es


In this GDPR update, we will address the transfer of personal data outside the European Economic Area (EEA).

Similar as under the current Data Privacy Directive 95/46/EC (the Directive), the transfer of personal data outside the EEA remains restricted under the General Data Protection Regulation (the GDPR). However, the GDPR introduces several changes in this respect, including new derogations for the cross-border data transfers.

Adequate level of protection

As a general rule, the transfer of personal data to a country outside the EEA (generally referred to as a "third country") may only take place if that country ensures an adequate level of data protection.

The European Commission (the Commission) has the power to determine that a third country, a territory or a specified sector within that third country, or an international organisation ensures an adequate level of protection for data transfers. After the Commission has recognised a third country as providing an adequate level of protection, personal data can be transferred without any further protective measures or authorisation. The GDPR obliges the Commission to review its adequacy decisions at least every four years.

In determining whether a third country, territory or specified sector or an international organisation ensures an adequate level of protection, the Commission will take into account, inter alia:

  1. the rule of law, respect for human rights and relevant legislation e.g. with regard to (the (onward) transfers of) personal data and the effective and enforceable data subject rights;
  2. the existence and effective functioning of one or more independent supervisory authorities, with authority and responsibility for ensuring and enforcing compliance with the data protection rules; and
  3. international commitments by the third country or international organisation, or other obligations arising from legally binding conventions or instruments in relation to the protection of personal data.

The existing adequacy decisions by (including notably the decision on the EU - US Privacy Shield), adopted by the Commission under the Directive, shall remain in force until amended, replaced or repealed by the Commission in accordance with the GDPR.

Transfer of personal data to third countries that do not ensure an adequate level of protection

In the absence of an adequacy decision by the Commission, personal data may only be transferred to a third country if (i) the controller or processor provides appropriate safeguards, and (ii) enforceable data subject rights and effective legal remedies for data subjects are available.

These safeguards may be provided, without requiring any specific authorisation from a supervisory authority, by:

  1. a legally binding and enforceable instrument between public authorities or bodies;
  2. Binding Corporate Rules;
  3. standard contractual clauses adopted by the Commission;
  4. standard contractual clauses adopted by the supervisory authority and approved by the Commission;
  5. approved codes of conduct; and
  6. approved certification mechanisms.

Below, we will address the three safeguards that in practice are likely to be the most relevant.

Binding Corporate Rules

Binding Corporate Rules (BCRs) are internal rules adopted by a multinational group of undertakings which define its global policy with regard to the international transfers of personal data within the same corporate group to entities in countries which do not provide an adequate level of protection.

Under the GDPR, BCRs must:

  1. be approved by the competent (lead) supervisory authority;
  2. be legally binding and apply to and are enforced by every member concerned of the group of undertakings;
  3. confer enforceable rights on data subjects with regard to the processing of their personal data; and
  4. contain specific information on, inter alia: (a) the structure and contact details of the group; (b) the data transfers including the categories of personal data; (c) the type of processing and its purposes; (d) the type of data subjects affected; (e) the identification of the third countries in question; (f) the application of the general data protection principles; (g) the rights of the data subjects; (h) the acceptance of liability by the controller or processor established in the EU for any breaches of the BCRs by a group member not established in the EU; (i) the tasks of the data protection officer; and (j) the complaint procedures.

Standard contractual clauses adopted or approved by the Commission

The transfer of personal data to a third country that does not provide an adequate level of protection is also allowed if standard contractual clauses adopted by the Commission or by a supervisory authority (and approved by the Commission) are used.

The GDPR explicitly states that standard contractual clauses can be included in a wider agreement and parties are allowed to add other clauses or safeguards, provided that they do not contradict the standard contractual clauses or prejudice the data subjects' fundamental rights or freedoms.

Ad hoc contractual clauses may also be used, but these require supervisory authority approval prior to the cross-border transfer.

The Commission has currently issued three sets of standard contractual clauses: two sets for transfers from data controllers established in the EEA to data controllers established outside the EEA and one set for the transfer from data controllers established in the EEA to processors established outside the EEA. No standard contractual clauses exist for the cross-border transfer from processors established in the EEA to sub-processors established outside the EEA.

The approved sets of standard contractual clauses remain valid, but the GDPR leaves open the possibility for these sets to be repealed (and replaced by a new set of standard contractual clauses).

Approved codes of conduct

Under the GDPR, the use of codes of conduct is encouraged to serve as a tool to demonstrate compliance with the GDPR. Codes of conduct may also serve as appropriate safeguards for the cross-border transfer of personal data.

Codes of conducts may be prepared by associations or other bodies representing controllers or processors and must be submitted to the supervisory authority for prior approval.

Adherence to an approved code of conduct combined with commitments by a controller or processor outside the EEA to apply the appropriate safeguards, can demonstrate that the controller or processor outside the EEA has implemented adequate safeguards.

Derogations for specific situations

The GDPR contains various derogations from the prohibition to transfer personal data outside the EEA without adequate protection. These derogations are largely similar to the derogations under the Directive. The derogations apply when:

  1. the data subject has explicitly consented to the proposed transfer, after having been informed of the possible risks of such transfers for the data subject due to the absence of an adequacy decision and appropriate safeguards (i.e. it is insufficient to just mention that data will be transferred to a third country);
  2. the transfer is necessary for the performance of a contract between the data subject and the controller or the implementation of pre-contractual measures taken at the data subject's request;
  3. the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and a third party;
  4. the transfer is necessary for important reasons of public interest;
  5. the transfer is necessary for the establishment, exercise or defence of legal claims;
  6. the transfer is necessary to protect the vital interests of the data subject or of other persons, where the data subject is physically or legally incapable of giving consent; and
  7. the transfer is made from a register that, according to EU or member state law, is intended to provide information to the public and that is open to consultation either by the public in general or by any person who can demonstrate a legitimate interest, but only to the extent that the conditions set out in Union or Member State law for consultation are fulfilled in the particular case.

Finally, if the transfer cannot be based on standard contractual clauses, BCRs or any of the other derogations set out above, the transfer may take place if:

  1. it is not repetitive;
  2. concerns only a limited number of data subjects;
  3. is necessary for the purposes of compelling legitimate interests pursued by the controller which are not overridden by the interests and freedoms of the data subjects;
  4. the controller has assessed all circumstances and has provided suitable safeguards;
  5. the controller informs the supervisory authority of the transfer.

This final derogation allows for some flexibility but also requires a careful assessment and proper documentation and should only be applied as an exception.

Practical recommendations

Failure to comply with the GDPRs' provisions on data transfers to third countries are subject to fines up to EUR 20,000,000 or 4% of the total worldwide annual turnover, whichever is higher. Therefore, organisations would do well to review and map (key) cross-border data flows and assess whether the current cross-border mechanisms continue to be appropriate.

In general we do not recommend relying on consent for your onward transfers of personal data. Data subjects can withdraw their consent at any time and if they do, you no longer have a valid basis for the transfer of personal data outside the EEA. As data storage becomes more and more cloud based and may be stored in various data centres across the world (which may not even be the same data centre every time), having to deal with withdrawal of consent may create a complex and time-consuming puzzle. Where possible, it is better to rely on other forms of safeguards, such as BCRs or model clauses, or to store data within the EEA and avoid onwards transfers.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

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.

Events from this Firm
25 Oct 2018, Other, Munich, Germany

Please register via RSVP button by October 15, 2018. If you have any questions, please contact Marcel Schmidt.

30 Oct 2018, Other, Frankfurt, Germany

With the blockchain market maturing, we see an advancing diversification of token types and offerings.

30 Oct 2018, Other, London, UK

The third campaign in Dentons' TechTalk series explores the role of Blockchain in the modern business world.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must 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