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Volume XII, Number 177

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Other Transfers from EEA Controller Controller A (EEA)→Employee of Controller A (non-EEA)

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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Other Transfers from EEA Controller - Controller A (EEA)→Employee of Controller A (non-EEA)

Description and Implications

  • Background. Company A is a European legal entity that does not have a legal presence in Country Q.  Company A 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 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’s rationale may apply equally to other remote-work situations such as an employee that resides in a non-EEA country, or a remote employee that downloads personal data (as opposed to remotely accesses such data).

  • Transfer Impact Assessments. 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.” As a result, Company A might consider conducting a TIA to analyze various risks that may result from the transmission of data to an employee in Country Q.  While conducting a TIA might be beneficial, it is important to note that unlike transfers that utilize the SCCs, a TIA is not contractually required.

  • Law enforcement request policy.  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.”3  As a result, Company A might consider creating a law enforcement request policy to mitigate risks surrounding law enforcement requests received 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.

©2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XII, Number 75
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About this Author

David A. Zetoony Privacy Attorney Greenberg Traurig
Shareholder

David Zetoony, Co-Chair of the firm's U.S. Data, Privacy and Cybersecurity Practice, focuses on helping businesses navigate data privacy and cyber security laws from a practical standpoint. David has helped hundreds of companies establish and maintain ongoing privacy and security programs, and he has defended corporate privacy and security practices in investigations initiated by the Federal Trade Commission, and other data privacy and security regulatory agencies around the world, as well as in class action litigation. 

David receives regular recognitions from clients and peers for...

303.685.7425
Carsten Kociok, Greenberg Traurig Law Firm, Germany, Cybersecurity and Technology, Finance Litigation Attorney
Counsel

Carsten Kociok focuses his practice on the technology, media and telecommunications industries. He has broad experience in the areas of Internet, information technology, electronic and mobile payments and new media, as well as regulatory and data protection law issues.

Carsten advises national and international companies from the Internet, payments and technology industries on the commercial and regulatory side of their business, in particular in the areas of e-commerce and e-business, electronic and mobile payments, service distribution,...

490-30700-171119
Andrea C. Maciejewski Data Privacy Lawyer Greenberg Traurig
Associate

Andrea C. Maciejewski advises clients on compliance with local and international data privacy regulations including the GDPR, CCPA, COPPA, CAN-SPAM , TCPA, and state biometric laws. She guides clients on data breach response and privacy policies.

 

+1 303.572.6500
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