Opinion 31/2021 on the draft decision of the Spanish Supervisory Authority regarding the Processor Binding Corporate Rules of the COLT Group

Adopted Opinion 31/2021 on the draft decision of the Spanish Supervisory Authority regarding the Processor Binding Corporate Rules of the C OLT Group Adopted on 2 August 2021 2 Adopted 3 Adopted The European Data Protection Board Having regard to Article 63, Article 64(1) (f) and Article 47 of the Regulation 2016/679/EU of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free mo vement of such data, and repealing Directive 95/46/EC (hereinafter “GDPR”), Having regard to the European Economic Area ( hereinafter “ EEA ” ) Agreement and in particular to Annex XI and Protocol 37 thereof, as amended by the Decision of the EEA joint Commit tee No 154/2018 of 6 July 2018 1 , Having regard to Article s 10 and 22 of its Rules of Procedure . Whereas: (1) The main role of the European Data Protection Board (here in after the “ EDPB ” ) is to ensure the consistent application of the GDPR throughout the EEA . To this effect, it follows from A rticle 64(1)(f) GDPR that the EDPB shall issue an opinion where a supervisory authority ( here in after “ SA ” ) aims to approve binding corporate rules ( here in after “ BCRs ” ) within the meaning of A rticle 47 GDPR. (2) The ED PB welcomes and acknowledges the efforts the companies make to uphold the GDPR standards in a global environment. Building on the experience under Directive 95/46/EC , the EDPB affirms the important role of BCRs to frame international transfers and its comm itment to support the companies in setting - up their BCRs. This opinion aims towards this objective and takes into account that the GDPR strengthened the level of protection, as reflected in the requirements of A rticle 47 GDPR , and conferred to the EDPB the task to issue an opinion on the competent SA ’s (BCR s Lead) draft decision aiming to approve BCRs. This task of the EDPB aims to ensure the consistent application of the GDPR, including by the SAs , controllers , and processors. (3) Pursuant to Article 46(1) GDPR, in the absence of a decision pursuant to Article 45 ( 3) GDPR , a controller or processor may transfer personal data to a third country or international organisation only if the controller or processor has provided appropriate safeguar ds, and on condition that enforceable data subject rights and effective legal remedies for data subjects are available. A group of undertakings or group of enterprises engaged in a joint economic activity may provide such safeguards by the use of legally b inding BCRs, which expressly confer enforceable rights on data subjects and fulfil a series of requirements ( A rticle 46 GDPR). The specific requirements listed in the GDPR are the minimum items BCRs shall specify ( A rticle 47(2) GDPR). The BCRs are subject to approval from the competent SA , in accordance with the consistency mechanism set out in A rticle 63 and Article 64(1)(f) GDPR, provided that the BCRs meet the conditions set out in Article 47 GDPR, together with the requirements set out in the relevant w orking documents of the Article 29 Working Party 2 , endorsed by the EDPB. 1 References to “Member States” made throughout this opinion should be understood as references to “EEA Member States”. 2 The Working Party on the Protection of Individuals with regard to the Processing of Personal Data instituted by Article 29 of Directive 95/46/EC . 4 Adopted (4) This opinion only covers EDPB’s consideration that the BCRs submitted for the required opinion afford appropriate safeguards in that they meet all requirements of Article 47 GDPR and WP257 rev01 of the Article 29 Working Party, as endorsed by the EDPB 3 . Accordingly, this opinion and the SAs’ review do not address elements and obligations of the GDPR mentioned in the BCRs at issue other than those related to Article 47 GDPR . ( 5 ) WP257 rev.01 of the Article 29 Working Party , as endorsed by the EDPB, provides for the required elements for BCRs for processors , (hereinafter “BCR - P ”) , including the Intra - Company Agreement where applicable, and the application form. WP265 of the Article 29 Working Party 4 , as endorsed by the EDPB, provides for recommendations to the applicants to help them demonstrate how to meet the requirements of A rticle 47 GDPR and WP257 rev01. Additionally, WP26 5 informs the applicants that any documentation submitte d is subject to access to documents requests in accordance with the SAs ’ national laws. The EDPB is subject to Regulation 1049/2001 5 pursuant to A rticle 76(2) GDPR. ( 6 ) Taking into account the specific characteristics of BCRs provided for by Article 47(1) and (2) GDPR , each application should be addressed individually and is without prejudice to the assessment of any other BCRs . The EDPB recalls that BCRs should be customised to take account of the structure of the group of co mpanies that they apply to, the processing they undertake , and the policies and procedures that they have in place to protect personal data 6 . (7 ) The opinion of the EDPB shall be adopted, pursuant to Article 64(3) GDPR in conjunction with A rticle 10(2) o f the EDPB Rules of Procedure, within eight weeks after the Chair has decided that the file is complete. Upon decision of the EDPB Chair, this period may be extended by a further six weeks, taking into account the complexity of the subject matter. HAS AD OPTED THE FOLLOWING OPINION : 1 SUMMARY OF THE FACTS 1. In accordance with the cooperation procedure as set out in WP263 rev.01, the draft BCR - P of the C OLT Group were reviewed by the Spanish Supervisory Authority a s the BCR Lead SA (hereinafter the “BCR Lead SA”) . 2. The BCR Lead SA has submitted its draft decision regarding the draft BCR - P of the C OLT Group, requesting an opinion of the EDPB pursuant to A rticle 64(1)(f) GDPR on 23 of June 2021 . The decision on the completeness of the file was taken on 12 July 2021. 3 Article 29 Working Party , Working Document setting up a table with the elements and principles to be found in Processor Binding Corporate Rules , a s last r evised and a dopted on 6 February 2018 , WP 25 7 rev.01. 4 Article 29 Working Party, Recommendations on the Standard Application for Approval of Processor Binding Corporate Rules for the Transfer of Personal Data, adopted on 11 April 2018, WP265. 5 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents . 6 This view was expressed by the Article 29 Working Party in Working Document Setting up a framework for the structure of Binding Corporate Rules, adopted on 24 June 2008 , WP154. 5 Adopted 2 ASSESSMENT 3. The draft BCR - P of the C OLT Group cover transfers of personal data when COLT Group entities, legally bound by the BCRs and having implemented the BCR s , act as Data processor s accor ding to the instructions of a n on - C OLT Data controller e stablished in the EEA. 7 4. Depending on the services provided to the Data controller, c oncerned data subjects include Customer's Customers, employees or business contacts 8 . 5. The draft BCR - P of the C OLT Group have been scrutinised according to the procedures set up by the EDPB. The SAs assembled within the EDPB have concluded that the C OLT Group draft BCR - P contain all elements required under A rt icle 47 GDPR and WP257 rev01, in concordance with the draft decision of the BCR Lead SA submitted to the EDPB for an opinion. Therefore, the EDPB does not have any concerns that need to be addressed. 3 CONCLUSIONS / RECOMM ENDATIONS 6. Taking into account the above and the commitments that the group members will undertake by signing the C OLT Group’s Intra - Company Agreement, the EDPB considers that the draft d ecision of the BCR Lead SA may be adopted as it is, since the draft BCR - P of the C OLT Group contain appropriate safeguards to ensure that the level of protection of natural persons guaran teed by the GDPR is not undermined when personal data will be transferred to and processed by the g roup m embers based in third countries. Finally, the EDPB also recalls the provisions contained within A rticle 47(2)(k) GDPR and WP 25 7 rev.01 providing the conditions under which the applicant may modify or update the BCRs, includi ng updates to the list of BCRs g roup m embers . 4 FINAL REMARKS 7. This opinion is addressed to the Spanish Supervisory Authority and will be made public pursuant to A rticle 64(5 )( b) GDPR. 8. According to Article 64 (7) and (8) GDPR, the Spanish Supervisory Authority shall communicate its response to this opinion to the Chair within two weeks after receiving the opinion . 9. Pursuant to A rticle 70(1)(y) GDPR, the Spanish Super visory Authority shall communicate the final decision to the EDPB for inclusion in the register of decisions which have been subject to the consistency mechanism. 10. In accordance with the judgment of the Court of Justice of the European Union C - 311/18 9 , it is the responsibility of the data exporter in a Member State, if needed with the help of the data importer, to assess whether the level of protection required by EU law is respected in the third country concerned, in order to determine if the guarantees pr ovided by BCRs can be complied with in practice, taking into consideration the possible interference created by the third country legislation with the fundamental rights. If this is not the case, the data exporter in a Member State, if needed with the help of the data 7 BCR - P of COLT, Annex 1, Section 1 .1. 8 BCR - P of COLT, Annex 1, Section 2. 9 C JEU, Data Protection Commissioner v . Facebook Ireland Ltd and Maximillian Schrems , 16 July 2020, C - 311/18. 6 Adopted importer, should assess whether they can provide supplementary measures to ensure an essentially equivalent level of protection as provided in the EU 10 . For the European Data Protection Board The Chair (Andrea Jelinek) 10 See EDPB Recommendations 01/2020 on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data and EDPB Recommendations 02/2020 on the European Essential Guarantees for surveillance measures.