Option 1

• Transfer 1 and Transfer 2: Possible use of SCC Module 2. The EDPB has taken the position that a data subject “cannot be considered a controller or processor”[i] and, therefore, the restrictions on cross-border data transfers that apply to controllers and processors do not apply to data subjects.[ii] As a result, an argument could be made that no mechanism is needed to transfer personal data from the data subject to Company Z.  However, because Company Z is working on behalf, and at the direction of, Company A, an argument could be made that the data subject is not making the decision to directly transfer personal data outside of the EEA – that decision has been made by Company A. Based upon that rationale, Company A and Company Z might consider utilizing Module 2 (First SCC) wherein Company A would conceptualize itself as constructively exporting personal data from the EEA to its processor in Country Q.
• Transfer 3: Possible use of SCC Module 3. Pursuant to Clause 8.7 of the First SCC, all subsequent onward transfers to non-adequate jurisdictions must also utilize the SCCs (appropriate module). According to Clause 8.7, transfers “in the same [non-EEA] country” should also utilize a safeguard mechanism such as the SCCs.[iii] In this case, the transfer from Company Z to Company Y could be conceptualized either as a processor-to-processor transfer (where Company Y is acting at the direction of Company Z), or as a controller-to-processor transfer (where Company Y is acting at the direction of Company A). The former structure (depicted to the left) might be most appropriate to the extent that Company Y has been selected by Company Z, is a sub-processor of Company Z, and/or takes instruction directly from Company Z.
• Transfer Impact Assessments. Clause 14 of the SCCs requires all parties (Company A, Company Z, and Company Y) to document a transfer impact assessment (TIA) of the laws of Country Q to determine whether any party has reason to believe that the laws and practices of Country Q that apply to the personal data transferred prevent the data importers (i.e., Company Z and Company Y) from fulfilling their obligations under the SCCs. The TIA could take the form of a single document reviewed and approved by all parties, or separate documents that reflect the specific factors applicable to Company Z and to Company Y.
• Law Enforcement Request Policy. Clause 15 of the SCCs requires the data importers (Company Z and Company Y) to take specific steps in the event that they receive a request from a public authority for access to personal data.

Option 2

• Transfer 1 and Transfer 2: Possible use of SCC Module 2. The EDPB has taken the position that a data subject “cannot be considered a controller or processor”[iv] and, therefore, the restrictions on cross-border data transfers that apply to controllers and processors do not apply to data subjects.[v] As a result, an argument could be made that no mechanism is needed to transfer personal data from the data subject to Company Z. However, because Company Z is working on behalf, and at the direction of, Company A, an argument could be made that the data subject is not making the decision to directly transfer personal data outside of the EEA – that decision has been made by Company A. Based upon that rationale, Company A and Company Z might consider utilizing Module 2 (First SCC) wherein Company A would conceptualize itself as constructively exporting personal data from the EEA to its processor in Country Q.
• Transfer 3 and Transfer 4: Possible use of SCC Module 2. Pursuant to Clause 8.7 of the First SCC, all subsequent onward transfers to non-adequate jurisdictions must also utilize the SCCs (appropriate module). According to Clause 8.7, transfers “in the same [non-EEA] country” should also utilize a safeguard mechanism such as the SCCs.[vi] In this case, the transfer from Company Z to Company Y could be conceptualized either as a processor-to-processor transfer (where Company Y is acting at the direction of Company Z), or as a controller-to-processor transfer (where Company Y is acting at the direction of Company A). The latter structure (depicted to the left) might be most appropriate to the extent that Company Y has been selected by Company A, is a direct processor of Company A, and/or takes instruction directly from Company A.
• Transfer Impact Assessments. Clause 14 of the SCCs requires all parties (Company A, Company Z, and Company Y) to document a transfer impact assessment (TIA) of the laws of Country Q to determine whether any party has reason to believe that the laws and practices of Country Q that apply to the personal data transferred prevent the data importers (i.e., Company Z and Company Y) from fulfilling their obligations under the SCCs. The TIA could take the form of a single document reviewed and approved by all parties, or separate documents that reflect the specific factors applicable to Company Z and to Company Y.
• Law Enforcement Request Policy. Clause 15 of the SCCs requires the data importers (Company Z and Company Y) to take specific steps in the event that they receive a request from a public authority for access to personal data.