Article 49 GDPR - Derogations for specific situations

1. In the absence of an adequacy decision pursuant to Article 45(3), or of appropriate safeguards pursuant to Article 46, including binding corporate rules, a transfer or a set of transfers of personal data to a third country or an international organisation shall take place only on one of the following conditions:
(a) the data subject has explicitly consented to the proposed transfer, after having been informed of the possible risks of such transfers for the data subject due to the absence of an adequacy decision and appropriate safeguards;
(b) the transfer is necessary for the performance of a contract between the data subject and the controller or the implementation of pre-contractual measures taken at the data subject’s request;
(c) the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and another natural or legal person;
(d) the transfer is necessary for important reasons of public interest;
(e) the transfer is necessary for the establishment, exercise or defence of legal claims;
(f) the transfer is necessary in order to protect the vital interests of the data subject or of other persons, where the data subject is physically or legally incapable of giving consent;
(g) the transfer is made from a register which according to Union or Member State law is intended to provide information to the public and which is open to consultation either by the public in general or by any person who can demonstrate a legitimate interest, but only to the extent that the conditions laid down by Union or Member State law for consultation are fulfilled in the particular case.
Where a transfer could not be based on a provision in Article 45 or 46, including the provisions on binding corporate rules, and none of the derogations for a specific situation referred to in the first subparagraph of this paragraph is applicable, a transfer to a third country or an international organisation may take place only if the transfer is not repetitive, concerns only a limited number of data subjects, is necessary for the purposes of compelling legitimate interests pursued by the controller which are not overridden by the interests or rights and freedoms of the data subject, and the controller has assessed all the circumstances surrounding the data transfer and has on the basis of that assessment provided suitable safeguards with regard to the protection of personal data. The controller shall inform the supervisory authority of the transfer. The controller shall, in addition to providing the information referred to in Articles 13 and 14, inform the data subject of the transfer and on the compelling legitimate interests pursued.
2. A transfer pursuant to point (g) of the first subparagraph of paragraph 1 shall not involve the entirety of the personal data or entire categories of the personal data contained in the register. Where the register is intended for consultation by persons having a legitimate interest, the transfer shall be made only at the request of those persons or if they are to be the recipients.
3. Points (a), (b) and (c) of the first subparagraph of paragraph 1 and the second subparagraph thereof shall not apply to activities carried out by public authorities in the exercise of their public powers.
4. The public interest referred to in point (d) of the first subparagraph of paragraph 1 shall be recognised in Union law or in the law of the Member State to which the controller is subject.
5. In the absence of an adequacy decision, Union or Member State law may, for important reasons of public interest, expressly set limits to the transfer of specific categories of personal data to a third country or an international organisation. Member States shall notify such provisions to the Commission.
6. The controller or processor shall document the assessment as well as the suitable safeguards referred to in the second subparagraph of paragraph 1 of this Article in the records referred to in Article 30.

Relevant Recitals

Frequently Asked Questions

Short answers to common questions about this provision. They are general information and not legal advice.

Only in the absence of an adequacy decision under Article 45(3) and of appropriate safeguards under Article 46, including binding corporate rules. The derogations are therefore a third tier, not an alternative that a controller may choose freely, and each of them is tied to a specific situation listed in the first subparagraph of Article 49(1).

The data subject must explicitly consent to the proposed transfer after having been informed of the possible risks that the transfer entails for them precisely because there is no adequacy decision and no appropriate safeguards. This informational element goes beyond the general consent conditions of Articles 4(11) and 7, and consent remains withdrawable under Article 7(3), which makes the ground unstable for ongoing flows.

The second subparagraph of Article 49(1) permits this only as a last resort, where neither Articles 45 or 46 nor any listed derogation applies. The transfer must not be repetitive, must concern only a limited number of data subjects and must be necessary for compelling legitimate interests not overridden by the interests or rights and freedoms of the data subject, and the controller must assess all the circumstances and provide suitable safeguards on that basis. The controller must also inform the supervisory authority of the transfer, inform the data subject of the transfer and of the interests pursued beyond the information required by Articles 13 and 14, and document the assessment and safeguards in the records referred to in Article 30, as paragraph 6 requires.

No. Paragraph 3 excludes points (a), (b) and (c) of the first subparagraph of paragraph 1, and the compelling-legitimate-interests clause of the second subparagraph, for activities carried out by public authorities in the exercise of their public powers. A public authority may still invoke, for instance, important reasons of public interest under point (d), but paragraph 4 requires that public interest to be recognised in Union law or in the law of the Member State to which the controller is subject.

Paragraph 2 prohibits transferring the entirety of the personal data, or entire categories of the data, contained in the register. Where the register is open only to persons with a legitimate interest, the transfer may take place only at the request of those persons or where they are to be the recipients, and point (g) itself requires that the conditions laid down by Union or Member State law for consultation be fulfilled in the particular case.