Opinion 06/2021 on the draft decision of the Spanish Supervisory Authority regarding the Processor Binding Corporate Rules of Kumon Group

Adopted Opinion 06 / 2021 on the draft decision of the Spanish Supervisory Authority regarding the Processor Binding Corporate Rules of Kumon Group Adopted on 16 February 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 EDPB 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 co mmitment 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 t he 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 safeguards, and on con dition 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 binding BCRs, w hich 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 re levant working 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, 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, WP264 informs the applicants that any document ation submitted is subject to access to documents requests in accordance with the SAs ’ national laws. The EDPB is subject to Regulation 1049/2001 4 pursuant to A rticle 76(2) GDPR. ( 6 ) Taking into account the specific characteristics of BCRs provided for b y 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 companies that th ey apply to, the processing they undertake , and the policies and procedures that they have in place to protect personal data 5 . (7 ) The opinion of the EDPB shall be adopted, pursuant to Article 64(3) GDPR in conjunction with A rticle 10(2) of 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 ADOPTED THE F OLLOWING 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 Kumon Group were reviewed by the Spanish Super visory Authority (“Agencia Españ ola de Protección de Datos”) as the BCR L ead SA (hereinafter the “BCR Lead SA”) . 2. The BCR Lead SA has submitted its draft decision regarding the draft BCR - P of Kumon Group, requesting an opinion of the EDPB pursuant to A rticle 64(1)(f) GDPR on 7 December 2020. The decision on the completeness of the fi le was taken on 22 December 2020 . 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 256 rev.01. 4 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 Com mission documents . 5 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 Kumon Group c over the collection of, t ransfer between, and all other p rocessing by the Kumon Group Companies 6 of personal data originating in the EEA, when the Kumon Group Companies act as data processors for a third party. 4. Concerned data subjects include franchise instructors, students studying (or interested in studying) in the Kumon program and students’ paren ts. 5. The draft BCR - P of Kumon Group have been scrutinised according to the procedures set up by the EDPB. The SAs assembled within the EDPB have concluded that the Kumon Group draft BCRs - 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 commitment s that the group members will undertake by signing Kumon Group’s Intercompany Agreement, the EDPB considers that the draft d ecision of the BCR Lead SA may be adopted as it is, since the draft BCRs - P of Kumon Group contain appropriate safeguards to ensure t hat the level of protection of natural persons guaranteed 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 257 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 ES 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 ES Supervisory Authority shall communicate its response to this opinion to the Chair within two weeks after receiving the opinion . 9. Pursuant to A rticle 7 0(1)(y) GDPR, the ES Supervisory 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 Euro pean Union C - 311/187 7 , 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 dete rmine if the guarantees provided 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 importer, should assess whether they can provide supplementary measures to ensure an essentially equivalent level of protection as provided in the EU . 6 As listed in Appendix I of the BCR - P of Kumon Group. 7 CJEU, Data Protection Commissioner v .Facebook Ireland Ltd and Maximillian Schrems , 16 July 2020, C - 311/18. 6 Adopted For the European Data Protecti on Board The Chair (Andrea Jelinek)