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The EU Commission has issued their long awaited new Standard Contractual Clauses (SCCs). These are a vital tool to enable international transfers of personal data. We consider the key changes and how to use these new SCCs in practice.
The General Data Protection Regulation (GDPR) contains a restriction on transfers of personal data to third countries. While there are number of exceptions, for many transfers the only practical solution is the use of SCCs. These are a template contract prepared by the EU Commission. Most large companies have complex webs of data transfers to hundreds, if not thousands, of overseas recipients, many of which will depend on SCCs.
The validity of the SCCs was considered by the CJEU last year in Schrems II (Case C‑311/18). The Court concluded that while the SCCs were still valid, the underlying transfers must be assessed on a case by case basis to determine whether the personal data will be adequately protected. This is, in effect, a transfer impact assessment.
In light of Schrems II, the EU Commission has overhauled the old clauses to produce the new SCCs released today. The EDPB also issued recommendations in November 2020 though one of the recommendations has not yet been finalised.
The good news is that the structure of the new SCCs follows the draft issued last year. It is modular and allows transfers:
The option to cover transfers from processor to sub-processors is long overdue and solves a long-standing problem of trying to justify transfers by processors to third countries. These provisions are broadly sensible though there are some interactions between the sub-processor and the controller which may be difficult to organise in a commercial relationship. For example, if the sub-processor wishes to use further sub-processors, it must obtain consent from the controller (see Article 9(a), Module 3).
Similarly, the new SCCs are also designed to operate on a multi-party basis allowing a single set of SCCs to cover transfers of personal data between a number of parties. While the old Standard Contractual Clauses were often used in this way, it is helpful to see this practice formalised.
Added to this there is a “docking clause” allowing new parties to be added over time. This will be useful in a number of situations, especially in case of intra-group transfers.
The substantive obligations under the SCCs are more burdensome. In broad terms, the new SCCs impose a light-weight form of the GDPR on the data importer, all backed up by third party rights for data subjects. Some of these obligations are new (stemming from the GDPR) while others already existed in the old Standard Contractual Clauses.
The exact obligations vary depending on the type of transfer but to take controller-controller transfers as an example (Module 1):
These are onerous obligations and data importers will need to consider compliance with these obligations carefully. In particular, while the old Standard Contractual Clauses were sometimes just signed and “put in the drawer”, the regulatory and civil litigation risk for non-compliance with data protection requirements has increased significantly over recent years. Some data exporters and importers should anticipate close scrutiny of their compliance with these clauses.
The most onerous provisions in the new SCCs are the Schrems II-proofing clauses which require the parties to initially assess the risk of transferring personal data to a third country and take appropriate action if access to that data is sought.
In relation to such transfer impact assessment:
If the personal data is subsequently accessed by public authorities:
While the new SCCs have now been finalised, the EDPB’s recommendation on compliance with the Schrems II judgment is still in draft (here). It is expected to be finalised shortly. (The EDPB has released its recommendations in final form on assessing the legal regime of a third-party country, referred as the European Essential Guarantees (here).)
It will therefore be interesting to see how the EDPB’s final recommendation on Schrems II interacts with the new SCCs and the extent to which it requires additional measures on top of those set out in the new SCCs.
The old Standard Contractual Clauses will be repealed three months after the underlying Commission Decision enters into force. This means that businesses should start to update their systems, processes and templates so that new transfers are based on the new SCCs and compliant with their provisions.
Existing transfers based on the old Standard Contractual Clauses will be grandfathered for 18 months from the underlying Commission Decision entering into force. Businesses will need to use that period to identify all such transfers and repaper them with the new SCCs.
This is a relatively generous period, but many large companies will likely have hundreds, if not thousands, of the old SCCs in place so identifying them all and migrating them to the new SCCs could take a significant amount of time and effort.
LegalTech may prove particularly helpful in this context and Linklaters is working on a technological set up that should enable us to streamline the process and assist our client in a cost-effective way.
The approach of the UK to the new SCCs is not entirely clear. While the UK has announced that it is currently preparing its own contractual clauses and will consult on them in the summer, the key questions are:
The EU Commission faced a difficult balancing approach preparing the new SCCs having to ensure they are both practical but also robust against future challenge.
Making the clauses too onerous could unduly restrict global data transfers at a time when the EU economy is seeking to recover from the Covid pandemic, as well as placing extra burdens on EU business and hampering the adoption of the new SCCs. In contrast, the clauses need to be robust against any future challenge. If there is a Schrems III challenge in the CJEU, the EU Commission will want to avoid the risk of further disruption from striking down the new SCCs.
This has inevitably resulted in the new SCCs being more burdensome than the old clauses but arguably in line with the very tight constraints imposed by the CJEU in Schrems II.
The new SCCs are available here.
4 June 2021
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