1. A transfer of personal data to a third country or an international organisation may take place where the Commission has decided that the third country, a territory or one or more specified sectors within that third country, or the international organisation in question ensures an adequate level of protection. Such a transfer shall not require any specific authorisation.
Article 45 GDPR - Transfers on the basis of an adequacy decision
2. When assessing the adequacy of the level of protection, the Commission shall, in particular, take account of the following elements:
(a) the rule of law, respect for human rights and fundamental freedoms, relevant legislation, both general and sectoral, including concerning public security, defence, national security and criminal law and the access of public authorities to personal data, as well as the implementation of such legislation, data protection rules, professional rules and security measures, including rules for the onward transfer of personal data to another third country or international organisation which are complied with in that country or international organisation, case-law, as well as effective and enforceable data subject rights and effective administrative and judicial redress for the data subjects whose personal data are being transferred;
(b) the existence and effective functioning of one or more independent supervisory authorities in the third country or to which an international organisation is subject, with responsibility for ensuring and enforcing compliance with the data protection rules, including adequate enforcement powers, for assisting and advising the data subjects in exercising their rights and for cooperation with the supervisory authorities of the Member States; and
(c) the international commitments the third country or international organisation concerned has entered into, or other obligations arising from legally binding conventions or instruments as well as from its participation in multilateral or regional systems, in particular in relation to the protection of personal data.
3. The Commission, after assessing the adequacy of the level of protection, may decide, by means of implementing act, that a third country, a territory or one or more specified sectors within a third country, or an international organisation ensures an adequate level of protection within the meaning of paragraph 2 of this Article. The implementing act shall provide for a mechanism for a periodic review, at least every four years, which shall take into account all relevant developments in the third country or international organisation. The implementing act shall specify its territorial and sectoral application and, where applicable, identify the supervisory authority or authorities referred to in point (b) of paragraph 2 of this Article. The implementing act shall be adopted in accordance with the examination procedure referred to in Article 93(2).
4. The Commission shall, on an ongoing basis, monitor developments in third countries and international organisations that could affect the functioning of decisions adopted pursuant to paragraph 3 of this Article and decisions adopted on the basis of Article 25(6) of Directive 95/46/EC.
5. The Commission shall, where available information reveals, in particular following the review referred to in paragraph 3 of this Article, that a third country, a territory or one or more specified sectors within a third country, or an international organisation no longer ensures an adequate level of protection within the meaning of paragraph 2 of this Article, to the extent necessary, repeal, amend or suspend the decision referred to in paragraph 3 of this Article by means of implementing acts without retro-active effect. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 93(2).
On duly justified imperative grounds of urgency, the Commission shall adopt immediately applicable implementing acts in accordance with the procedure referred to in Article 93(3).
6. The Commission shall enter into consultations with the third country or international organisation with a view to remedying the situation giving rise to the decision made pursuant to paragraph 5.
7. A decision pursuant to paragraph 5 of this Article is without prejudice to transfers of personal data to the third country, a territory or one or more specified sectors within that third country, or the international organisation in question pursuant to Articles 46 to 49.
8. The Commission shall publish in the Official Journal of the European Union and on its website a list of the third countries, territories and specified sectors within a third country and international organisations for which it has decided that an adequate level of protection is or is no longer ensured.
9. Decisions adopted by the Commission on the basis of Article 25(6) of Directive 95/46/EC shall remain in force until amended, replaced or repealed by a Commission Decision adopted in accordance with paragraph 3 or 5 of this Article.
Relevant Recitals
- Recital 103 Appropriate Level of Data Protection Based on an Adequacy Decision
- Recital 104 Criteria for an Adequacy Decision
- Recital 105 Consideration of International Agreements for an Adequacy Decision
- Recital 106 Monitoring and Periodic Review of the Level of Data Protection
- Recital 107 Amendment, Revocation and Suspension of Adequacy Decisions
Frequently Asked Questions
Short answers to common questions about this provision. They are general information and not legal advice.
Under Article 45(1), where the Commission has decided that a third country, a territory or one or more specified sectors within that country, or an international organisation ensures an adequate level of protection, transfers may take place without any specific authorisation. The adequacy decision thus removes the need for the appropriate safeguards of Article 46 or the derogations of Article 49 for the transfers it covers.
Paragraph 2 directs the Commission to take account in particular of the rule of law, respect for human rights and fundamental freedoms, relevant legislation including on public security, defence, national security, criminal law and public authority access to personal data, data protection rules, rules on onward transfers, case-law, and effective and enforceable data subject rights with administrative and judicial redress. It must also consider the existence and effective functioning of one or more independent supervisory authorities with adequate enforcement powers, and the international commitments and other legally binding obligations of the country or organisation.
No. Under paragraph 3 the implementing act must provide for a periodic review at least every four years, and under paragraph 4 the Commission monitors relevant developments on an ongoing basis. Where information reveals that adequacy is no longer ensured, paragraph 5 requires the Commission, to the extent necessary, to repeal, amend or suspend the decision by implementing acts without retroactive effect, and paragraph 6 obliges it to enter into consultations with the country or organisation to remedy the situation.
Yes. Paragraphs 1 and 3 expressly contemplate decisions covering a territory or one or more specified sectors within a third country, and the implementing act must specify its territorial and sectoral application. Adequacy can therefore be confined, for instance, to a defined category of recipients or a particular sector rather than the whole jurisdiction.
A decision under paragraph 5 is without prejudice to transfers made pursuant to Articles 46 to 49, as paragraph 7 makes clear, so exporters may fall back on appropriate safeguards or the derogations. Paragraph 8 requires the Commission to publish in the Official Journal and on its website the list of countries, territories, sectors and organisations for which adequacy is or is no longer ensured, and paragraph 9 keeps decisions adopted under Article 25(6) of Directive 95/46/EC in force until amended, replaced or repealed.