Artikkel 44
General principle for transfers

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Vurderinger
EU-regulering
Vurderinger
nasj. regulering
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(6) Rapid technological developments and globalisation have brought new challenges for the protection of personal data. The scale of the collection and sharing of personal data has increased significantly. Technology allows both private companies and public authorities to make use of personal data on an unprecedented scale in order to pursue their activities. Natural persons increasingly make personal information available publicly and globally. Technology has transformed both the economy and social life, and should further facilitate the free flow of personal data within the Union and the transfer to third countries and international organisations, while ensuring a high level of the protection of personal data.

GDPR

Article 44 is intended to state the general principle governing  data transfers to non-EU third countries or international organizations. These transfers can only be effected if the controllers and the processors falling under the scope of the Regulation comply with the rules provided  in Chapter V.

The provision gives however a new extension to the rule: transfers of personal data to a third country or to an international organization operated as part of planned or ongoing processing are covered, but also the future processing by the recipient third country to another country or another organization. They must also comply with Chapter V of the Regulation. In other words, by this provision, the Regulation sets up a sort of data protection-specific “right to pursue”: the data transferred outside the Union remain subject to the law of the Union not only for their transfer, but also for any processing and subsequent transfer.

The concept of international organization, defined in article 4, 26) of the Regulation is an organization and its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries.

This provision has been reintroduced by the final version of the Regulation, after having been removed from the second proposed version. The goal, as referred to in the provision is that the level of protection of individuals guaranteed by the Regulations is not lowered.

Direktivet

The Directive included no similar provision.

Utfordringer

The extension of the territorial scope to processing carried out outside the territory of the Union, by recipient controllers and processors established outside the EU has both political and legal implications.

Politically, the provision allows the European authorities to intervene and detect violations of the Regulation outside the EU on the grounds of a new legitimacy included in the Regulation. It can more easily use the argument of the data protection in different files or negotiations in order to obtain an advantage.

Legally, it goes without saying that the provision may be felt by third countries as an attack on their sovereignty because it imposes a new rule on their territory and a limitation of the freedom of processing. The powers of control and enforcement of the EU authorities and the Member States, of course, cannot be exercised outside the territory of the EU.

The measure must be taken of the difference with other rules allowing the application of the Regulation to controllers established outside the territory of the EU (see Article 3). It is an indirect submission since only the controllers and the processors who are subject to the other provisions of the Regulation pursuant to Article 3, must comply with Article 44 and accordingly, Chapter V. There is no recipient of the transferred data. Or any person concerned by the data which would be at the origin of the transfer either.

Forordning
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Art. 44

Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country or to an international organisation shall take place only if, subject to the other provisions of this Regulation, the conditions laid down in this Chapter are complied with by the controller and processor, including for onward transfers of personal data from the third country or an international organisation to another third country or to another international organisation. All provisions in this Chapter shall be applied in order to ensure that the level of protection of natural persons guaranteed by this Regulation is not undermined.

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Art. 40

Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country or to an international organisation may only take place if, subject to the other provisions of this Regulation, the conditions laid down in this Chapter are complied with by the controller and processor, including for onward transfers of personal data from the third country or an international organisation to another third country or to another international organisation.

2. forslag close

No specific provision

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No specific provision

Art. 44

Generelt prinsipp for overføring

Enhver overføring av personopplysninger som behandles eller skal behandles etter overføring til en tredjestat eller til en internasjonal organisasjon, skal finne sted bare dersom den behandlingsansvarlige og databehandleren, med forbehold for de andre bestemmelsene i denne forordning, oppfyller vilkårene i dette kapittel, herunder for videreoverføring av personopplysninger fra tredjestaten eller en internasjonal organisasjon til en annen tredjestat eller en annen internasjonal organisasjon. Alle bestemmelser i dette kapittel skal få anvendelse for å sikre at det nivået for vern av fysiske personer som garanteres i denne forordning, ikke undergraves.

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Ingen tilsvarende bestemmelse

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