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The following is part of Greenberg Traurig’s ongoing series analyzing cross-border data transfers in light of the new Standard Contractual Clauses approved by the European Commission in June 2021.

Visual Implications
Controller (EEA) Processor (EEA) → Employee of Processor (non-EEA)
  • Background. Company Z is a European legal entity that does not have a legal presence in Country Q. Company Z has an employee that works from Country Q (e.g., a remote worker or a travelling employee).
  • Transfer 1: No mechanism needed for transfer from Company A to Company Z. The GDPR does not require a safeguard mechanism for data transferred from a company in the EEA to another company in the EEA. Note that Company Z would be directly subject to the GDPR, and, as a result, data received would be subject to all GDPR requirements that apply to processors even in the absence of a SCC.
  • Transfer 2: No mechanism needed for transfer from Company Z to its employee outside of the EEA. The EDPB has suggested that when a company transmits personal data to an employee located outside of the EEA, the transmission does not constitute a “transfer” of personal information for purposes of Chapter V of the GDPR because the data has not been sent to a separate controller or processor.[1] While the EDPB provided, as an example, the use-case where an employee travels for work to India where he remotely accesses personal data from the EEA, the EDPB has not provided any indication that its rationale would not apply to other remote-work situations such as where an employee resides in a non-EEA country, or where the remote employee downloads personal data (as opposed to remotely accesses such data).
  • Transfer Impact Assessments. A formal transfer impact assessment is not required by contract if neither Company A nor Company Z signed SCCs. Nonetheless, the EDPB has suggested that a controller (Company A) is “accountable for [its] processing activities” which include assessing risks “to conduct or proceed with a specific processing operation in a third country although there is no ‘transfer’ situation.”[2] As a result, Company A and/or Company Z might consider conducting a TIA to analyze various risks that may result from the transmission of data to an employee in Country Q.
  • Law enforcement request policy. If no SCCs are signed, neither Company A nor Company Z would be directly subject to Section 15 of the SCCs that require specific steps if a company receives a request from a public authority for access to personal data. Nonetheless, the EDPB has suggested that a controller (Company A) is “accountable for [their] processing activities” which include assessing risks “to conduct or proceed with a specific processing operation in a third country although there is no ‘transfer’ situation.”[3] As a result, Company A might expect that Company Z create a law enforcement request policy to mitigate risks surrounding law enforcement requests that Company Z might receive from Country Q.

[1] EDPB, Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR at paras. 14, 15.

[2] EDPB, Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR at para. 17.

[3]  EDPB, Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR at para. 17.