EDPB Guidelines 05/2021 on the interplay of Article 3 and Chapter V: not a big deal at all

I intentionally deterred myself so far from reading opinions and analytics about newly issued Guidelines 05/2021 so that those do not inform my personal ‘first’ opinion. 

For now, Guidelines 05/2021 do not appear to be a big deal at all, nor are they free from inconsistency with the new SCCs and from casuistic examples.

1) Three criterions of transfers do not look like something ‘surprising’. C’mon, there could scarcely be anyone who expected the existence of ‘transfer’ between a controller/processor and a data subject. Maybe it is just me, but I can see few (if any) things that could be seen as significantly changing the landscape and adding value to the current understanding of things. 

2) At the same time, a misalignment between the EU Commission and the EDPB still continues. Recital 7 of the SCCs implementing decision noted that SCCs may be used for transfers “only to the extent that the processing by the importer does not fall within the scope of Regulation (EU) 2016/679”, and this is in clear contradiction with EDPB’s transfer criteria #3. More on the conflict between the Commission’s and EDPB’s approaches can be read here: https://iapp.org/news/a/why-it-is-unlikely-the-announced-supplemental-sccs-will-materialize/?mkt_tok=MTM4LUVaTS0wNDIAAAGAiv2DhonU2mSs-GNpYnvfsyMcmuYxz64LrNpH1YIA75K7-YZFEz3tT0a3i4wGnMiMXfBDlsr1mVDx_wDm-qJrSV0CybkgplN9HxJo5DkdpDW2

More interesting, there is still no uniform definition of ‘data exporter’ and ‘data importer’. From new Guidelines 05/2021 it is clear that only controllers, processors and joint controllers may qualify as ‘data exporter’ or ‘data importer’, and only between exporters and importers a transfer may take place. More or less (with some textual discrepancies) the same understanding may be seen in Annex 1 of the EDPB Recommendations 01/2020. But the different approach is seen in Clause 1(b) of the SCCs where the understanding of ‘exporter’ of ‘importer’ bears no relation to controllership issues. 

3) Such details may become important in some scenarios – let’s look at Example 5 (employee of a EU-based company travelling to a third country). First of all, this example seems to be borrowed from Norwegian DPA’s guidance – https://www.datatilsynet.no/rettigheter-og-plikter/virksomhetenes-plikter/overforing-av-personopplysninger-ut-av-eos/ . Second, what if, let’s say, an employee is not travelling to a third country but permanently sits there? Will this change the assessment and why does EDPB endorse such casuistic examples? Will this make the employee ‘importer’ and will this give rise to a ‘transfer’? My answer is ‘No’ for many reasons. And if the EDPB agrees (does it?..), what would be the role of such employee in the scheme? I tend to believe these will qualify as an ‘establishment’ of an employer (who, in turn, can be either a controller or processor). 

But never mind, it is just an example, and it does not really matter what I (or you) personally think. It is EDPB (not us) who is here to give clear answers applicable in a vast majority of scenarios – as opposed to superficial and often evident explanations and casuistic examples, evading a deep-dive into the heart of the issues. 

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