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.
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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 n.10.
2 The transfer of data from Europe to the United States arguably constitutes “processing” by the data subject and, therefore, is not subject to the GDPR at all, as the regulations do not apply to processing done by a “natural person in the course of a purely personal or household activity. GDPR, Art. 2(2)(c).
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. 10.
4 New SCC Module 1 at 8.7 (similar provisions in Module 2 and Module 3). The position that a transfer between companies in the same non-EEA country requires a safeguard also accords with Article 44 of the GDPR which requires that “any transfer of personal data . . . after transfer to a third country” must take place pursuant to the restrictions in Chapter V of the GDPR.
5 Commission Implementing Decision of 4.6.2021 at Art. 1 (stating that the clauses can be used by any exporter “subject to” the GDPR).
6 Commission Implementing Decision of 4.6.2021 at Recital 7.
7 54th Plenary Meeting dated 14 Sept. 2021 at § 2.1.