Model Contracts for the transfer of personal data to third countries
The Council and the European Parliament have given the Commission the power to decide, on the basis of Article 26 (4) of directive 95/46/EC that certain standard contractual clauses offer sufficient safeguards as required by Article 26 (2), that is, they provide adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals and as regards the exercise of the corresponding rights.
The Commission has so far issued two sets of standard contractual clauses for transfers from data controllers to data controllers established outside the EU/EEA and one set for the transfer to processors established outside the EU/EEA.
1. “(EU-)controller to (Non-EU/EEA-)controller”
2. “(EU-)controller to (Non-EU/EEA-)processor”
The possibility for the controller or processor to use standard data protection clauses adopted by the Commission or by a supervisory authority should neither prevent the possibility for controllers or processors to include the standard data protection clauses in a wider contract nor to add other clauses as long as they do not contradict, directly or indirectly, the standard contractual clauses adopted by the Commission or by a supervisory authority or prejudice the fundamental rights or freedoms of the data subjects.
The frequently asked questions on international transfers (March 2009) provide additional information on the principles and use of the standard contractual clauses.
Commission Decision 2001/497/EC Controller to Controller transfers (amended by Commission Decision C(2004) 5271)
- Commission Decision 2001/497/EC
- Press Release
- Frequently Asked Questions
- Article 29 Working Party Opinion 1/2001 on the Draft Commission Decision under the Article 26(4) of Directive 95/46
Commission Decision C(2004)5271
Controller to Controller transfers
Commission Decision C(2010)593
Controllers to Processors transfers
(repealing Decision 2002/16/EC)
Procedure for adoption
The procedure for adoption by the Commission of standard contractual clauses, in accordance with the comitology process, is as follows:
- a proposal from the Commission;
- an opinion by Member States' data protection authorities and the EDPS, in the framework of the Article 29 Working Party;
- an approval from the "Article 31 Committee", composed of representatives of Member States, under the comitology "examination procedure";
- the adoption of the decision by the College of Commissioners;
- at any time, the European Parliament and the Council may request the Commission to maintain, amend or withdraw the adequacy decision on the grounds that it act exceeds the implementing powers provided for in the Directive.
The effect of such a decision is that by incorporating the standard contractual clauses into a contract, personal data can flow from a Data Controller established in any of the 28 EU MS and three EEA member countries (Norway, Liechtenstein and Iceland) to a Data Controller or to data processors established in a country not ensuring an adequate level of data protection.
Commission Staff Working Document SEC(2006)95
- Commission Staff Working Document on the implementation of the Commission decisions on standard contractual clauses for the transfer of personal data to third countries (2001/497/EC and 2002/16/EC)
Commission Decision 2002/16/EC (repealed by Commission Decision C(2010)593)
- Commission Decision 2002/16/EC
- Press Release : Data Protection: Standard contractual clauses to facilitate personal data transfers to third countries for processing
- Opinion 7/2001 of the Article 29 Working party on the Draft Commission Decision (version 31 August 2001) under the Article 26(4) of Directive 95/46