Decision 2001/497 - 2001/497/EC: Commission Decision of 15 June 2001 on standard contractual clauses for the transfer of personal data to third countries, under Directive 95/46/EC (notified under document number C(2001) 1539) - Main contents

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2001/497/EC: Commission Decision of 15 June 2001 on standard contractual clauses for the transfer of personal data to third countries, under Directive 95/46/EC (Text with EEA relevance) (notified under document number C(2001) 1539)

Official Journal L 181 , 04/07/2001 P. 0019 - 0031

Commission Decision

of 15 June 2001

on standard contractual clauses for the transfer of personal data to third countries, under Directive 95/46/EC

(notified under document number C(2001) 1539)

(Text with EEA relevance)

(2001/497/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(1), and in particular Article 26(4) thereof,

Whereas:

• (1) 

  Pursuant to Directive 95/46/EC, Member States are required to provide that a transfer of personal data to a third country may only take place if the third country in question ensures an adequate level of data protection and the Member States' laws, which comply with the other provisions of the Directive, are respected prior to the transfer.

• (2) 

  However, Article 26(2) of Directive 95/46/EC provides that Member States may authorise, subject to certain safeguards, a transfer or a set of transfers of personal data to third countries which do not ensure an adequate level of protection. Such safeguards may in particular result from appropriate contractual clauses.

• (3) 

  Pursuant to Directive 95/46/EC, the level of data protection should be assessed in the light of all the circumstances surrounding the data transfer operation or set of data transfer operations. The Working Party on Protection of Individuals with regard to the processing of personal data established under that Directive(2) has issued guidelines to aid with the assessment(3).

• (4) 

  Article 26(2) of Directive 95/46/EC, which provides flexibility for an organisation wishing to transfer data to third countries, and Article 26(4), which provides for standard contractual clauses, are essential for maintaining the necessary flow of personal data between the Community and third countries without unnecessary burdens for economic operators. Those Articles are particularly important in view of the fact that the Commission is unlikely to adopt adequacy findings under Article 25(6) for more than a limited number of countries in the short or even medium term.

• (5) 

  The standard contractual clauses are only one of several possibilities under Directive 95/46/EC, together with Article 25 and Article 26(1) and (2), for lawfully transferring personal data to a third country. It will be easier for organisations to transfer personal data to third countries by incorporating the standard contractual clauses in a contract. The standard contractual clauses relate only to data protection. The data exporter and the data importer are free to include any other clauses on business related issues, such as clauses on mutual assistance in cases of disputes with a data subject or a supervisory authority, which they consider as being pertinent for the contract as long as they do not contradict the standard contractual clauses.

• (6) 

  This Decision should be without prejudice to national authorisations Member States may grant in accordance with national provisions implementing Article 26(2) of Directive 95/46/EC. The circumstances of specific transfers may require that data controllers provide different safeguards within the meaning of Article 26(2). In any case, this Decision only has the effect of requiring the Member States not to refuse to recognise as providing adequate safeguards the contractual clauses described in it and does not therefore have any effect on other...

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