EDPB issues guidance on data transfers following Schrems II

Following the recent judgment C-311/18 (Schrems II) by the Court of Justice of the European Union (CJEU), the European Data Protection Board (EDPB) published “Recommendations on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data” on November 11th. These measures are to be considered when assessing the transfer of personal data to countries outside of the European Economic Area (EEA), or so-called third countries. These recommendations are subject to public consultation until the end of November. Complementing these recommendations, the EDPB published “Recommendations on the European Essential Guarantees for surveillance measures”. Added together both recommendations are guidelines to assess sufficient measures to meet standards of the General Data Protection Regulation (GDPR), even if data is transferred to a country lacking protection comparable to that of the GDPR.

The EDPB highlights a six steps plan to follow when checking whether a data transfer to a third country meets the standards set forth by the GDPR.

The first step is to map all transfers of personal data undertaken, especially transfers into a third country. The transferred data must be adequate, relevant and limited to what is necessary in relation to the purpose. A major factor to consider is the storage of data in clouds. Furthermore, onwards transfer made by processors should be included. In a second step, the transfer tool used needs to be verified and matched to those listed in Chapter V of the GDPR. The third step is assessing if anything in the law or practice of the third country can impinge on the effectiveness of the safeguards of the transfer tool. The before mentioned Recommendations on European Essential Guarantees are supposed to help to evaluate a third countries laws, regarding the access of data by public authorities for the purpose of surveillance.

If the conclusion that follows the previous steps is that the third countries legislation impinges on the effectiveness of the Article 46 GDPR tool, the fourth step is identifying supplementary measures that are necessary to bring the level of protection of the data transfer up to EU Standards, or at least an equivalent, and adopting these. Recommendations for such measures are listed in Annex 2 of the EDPB Schrems II Recommendations. They may be of contractual, technical, or organizational nature. In Annex 2 the EDPB mentions seven technical cases they found and evaluates them. Five were deemed to be scenarios for which effective measures could be found. These are:

1. Data storage in a third country, that does not require access to the data in the clear.
2. Transfer of pseudonymized data.
3. Encrypted data merely transiting third countries.
4. Transfer of data to by law specially protected recipients.
5. Split or multi-party processing.

Maybe even more relevant are the two scenarios the EDPB found no effective measures for and therefore deemed to not be compliant with GDPR standards.:

6. Transfer of data in the clear (to cloud services or other processors)
7. Remote access (from third countries) to data in the clear, for business purposes, such as, for example, Human Resources.

These two scenarios are frequently used in practice. Still, the EDPB recommends not to execute these transfers in the upcoming future.
Examples of contractual measures are the obligation to implement necessary technical measures, measures regarding transparency of (requested) access by government authorities and measures to be taken against such requests. Accompanying this the European Commission published a draft regarding standard contractual clauses for transferring personal data to non-EU countries, as well as organizational measures such as internal policies and responsibilities regarding government interventions.

The last two steps are undertaking the formal procedural steps to adapt supplementary measures required and re-evaluating the former steps in appropriate intervals.

Even though these recommendations are not (yet) binding, companies should take a further look at the recommendations and check if their data transfers comply with the new situation.