Commission Implementing Decision (EU) 2021/915

Contents

THE EUROPEAN COMMISSION,Having regard to the Treaty on the Functioning of the European Union,Having regard to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (GDPR)^note, and in particular Article 28(7) thereof,Having regard to Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) N 45/2001 and Decision No 1247/2002/EC (EUDPR)^note, and in particular Article 29(7) thereof,Whereas:

(1)The concepts of controller and processor play a crucial role in the application of Regulation (EU) 2016/679 and of Regulation (EU) 2018/1725. The controller is the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data. For the purpose of Regulation (EU) 2018/1725, a controller means the Union institution or body or the directorate-general or any other organisational entity which, alone or jointly with others, determines the purposes and means of the processing of personal data. Where the purposes and means of such processing are determined by a specific Union act, the controller or the specific criteria for its nomination can be provided for by the Union. A processor is the natural or legal person, public authority, agency or other body, which processes personal data on the controller’s behalf.

(2)The same set of standard contractual clauses should apply in respect of the relationship between data controllers and data processors subject to Regulation (EU) 2016/679 and also when they are subject to Regulation (EU) 2018/1725. This is because, in order to have a coherent approach to personal data protection throughout the Union and the free movement of personal data in the Union, the data protection rules in Regulation (EU) 2016/679, applicable to the public sector in the Member States, and the data protection rules in Regulation (EU) 2018/1725, applicable to Union institutions, bodies, offices and agencies, have, as far as possible, been aligned with each other.

(3)To ensure compliance with the requirements of Regulations (EU) 2016/679 and (EU) 2018/1725, when entrusting a processor with processing activities, the controller should use only processors providing sufficient guarantees, in particular in terms of expert knowledge, reliability and resources, to implement technical and organizational measures which meet the requirements of Regulation (EU) 2016/679 and Regulation (EU) 2018/1725, including for the security of processing.

(4)The processing by a processor is to be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out the elements listed in Article 28(3) and (4) of Regulation (EU) 2016/679 or Article 29(3) and (4) of Regulation (EU) 2018/1725. That contract or act shall be in writing, including in electronic form.

(5)In accordance with Article 28(6) of Regulation (EU) 2016/679 and Article 29(6) of Regulation (EU) 2018/1725, the controller and processor may choose to negotiate an individual contract containing the compulsory elements set out in Article 28(3) and (4) of Regulation (EU) 2016/679 or Article 29(3) and (4) of Regulation (EU) 2018/1725, respectively, or to use, in whole or in part, standard contractual clauses adopted by the Commission pursuant to Article 28(7) of Regulation (EU) 2016/679 and Article 29(7)of Regulation (EU) 2018/1725.

(6)The controller and processor should be free to include the standard contractual clauses in this Decision in a broader contract, and to add other clauses or additional safeguards provided that they do not directly or indirectly contradict the standard contractual clauses or prejudice the fundamental rights or freedoms of data subjects. Use of the standard contractual clauses is notwithstanding any contractual obligations of the controller and/or processor to ensure respect for applicable privileges and immunities.

(7)The standard contractual clauses should encompass both substantive and procedural rules. In line with Article 28(3) of Regulation (EU) 2016/679 and Article 29(3) of Regulation (EU) 2018/1725, the standard contractual clauses should also require the controller and processor to set out the subject matter and duration of the processing, its nature and purpose, the type of personal data concerned, the categories of data subjects and the obligations and rights of the controller.

(8)Pursuant to Article 28(3) of Regulation (EU) 2016/679 and pursuant to Article 29(3) Regulation (EU) 2018/1725, the processor has to inform the controller immediately if, in its opinion, an instruction of the controller infringes Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, or other Union or Member State data protection provisions.

(9)If a processor enlists another processor to carry out specific activities, the specific requirements referred to in Article 28(2) and (4) of Regulation (EU) 2016/679 or Article 29(2) and (4) of Regulation (EU) 2018/1725 should apply. In particular, a prior specific or general written authorisation is required. Whether this prior authorisation is specific or general, the first processor should keep a list of other processors up to date.

(10)To fulfil the requirements of Article 46(1) of Regulation (EU) 2016/679, the Commission adopted standard contractual clauses pursuant to Article 46(2)(c) of Regulation (EU) 2016/679. Those clauses also fulfil the requirements of Article 28(3) and (4) of Regulation (EU) 2016/679 for data transfers from controllers subject to Regulation (EU) 2016/679 to processors outside the territorial scope of application of that Regulation or from processors subject to Regulation (EU) 2016/679 to sub-processors outside the territorial scope of that Regulation. These standard contractual clauses cannot be used as standard contractual clauses for the purpose of Chapter V of Regulation (EU) 2016/679.

(11)Third parties should be able to become a party to the standard contractual clauses throughout the life cycle of the contract.

(12)The operation of the standard contractual clauses should be evaluated, as a sub-part of the periodic evaluation of Regulation (EU) 2016/679 referred to in Article 97 of that Regulation.

(13)The European Data Protection Supervisor and the European Data Protection Board were consulted in accordance with Article 42(1) and (2) of Regulation (EU) 2018/1725 and delivered a joint opinion on 14 January 2021^note, which has been taken into consideration in the preparation of this Decision.

(14)The measures provided for in this Decision accord with the opinion of the Committee established under Article 93 of Regulation (EU) 2016/679 and Article 96(2) of Regulation (EU) 2018/1725.

HAS ADOPTED THIS DECISION:

Article 1 #

The standard contractual clauses as set out in the Annex fulfil the requirements for contracts between controllers and processors in Article 28(3) and (4) of Regulation (EU) 2016/679 and of Article 29(3) and (4) of Regulation (EU) 2018/1725.

Article 2 #

The standard contractual clauses as set out in the Annex may be used in contracts between a controller and a processor who processes personal data on behalf of the controller.

Article 3 #

The Commission shall evaluate the practical application of the standard contractual clauses set out in the Annex on the basis of all available information as part of the periodic evaluation provided for in Article 97 of Regulation (EU) 2016/679.

Article 4 #

This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Annex I · List of parties

1.Name: …

Controller(s): [Identity and contact details of the controller(s), and, where applicable, of the controller’s data protection officer]

Address: …

Contact person’s name, position and contact details: …

Signature and accession date: …

…

Processor(s): [Identity and contact details of the processor(s) and, where applicable, of the processor’s data protection officer]

Address: …

Contact person’s name, position and contact details: …

Signature and accession date: …

…

Annex II · Description of the processing

Categories of data subjects whose personal data is processed

…

Categories of personal data processed

….

Sensitive data processed (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

…

Nature of the processing

….

Purpose(s) for which the personal data is processed on behalf of the controller

…

Duration of the processing

…

For processing by (sub-) processors, also specify subject matter, nature and duration of the processing

III · Technical and organisational measures including technical and organisational measures to ensure the security of the data

Explanatory note:

The technical and organisational measures need to be described concretely and not in a generic manner.

Description of the technical and organisational security measures implemented by the processor(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, as well as the risks for the rights and freedoms of natural persons. Examples of possible measures:

Measures of pseudonymisation and encryption of personal data

Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services

Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident

Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing

Measures for user identification and authorisation

Measures for the protection of data during transmission

Measures for the protection of data during storage

Measures for ensuring physical security of locations at which personal data are processed

Measures for ensuring events logging

Measures for ensuring system configuration, including default configuration

Measures for internal IT and IT security governance and management

Measures for certification/assurance of processes and products

Measures for ensuring data minimisation

Measures for ensuring data quality

Measures for ensuring limited data retention

Measures for ensuring accountability

Measures for allowing data portability and ensuring erasure]

For transfers to (sub-) processors, alsodescribe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller

Description of the specific technical and organisational measures to be taken by the processor to be able to provide assistance to the controller.

Annex IV · List of sub-processors

Explanatory note:

1.Name: …

2.…

This Annex needs to be completed in case of specific authorisation of sub-processors (Clause 7.7(a), Option 1).

The controller has authorised the use of the following sub-processors:

Address: …

Contact person’s name, position and contact details: …

Description of the processing (including a clear delimitation of responsibilities in case several sub-processors are authorised): …

Standard contractual clauses

Section I

Clause 1 — Purpose and scope

(a)The purpose of these Standard Contractual Clauses (the Clauses) is to ensure compliance with [choose relevant option: OPTION 1: Article 28(3) and (4) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)] / [OPTION 2: Article 29(3) and (4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC].

(b)The controllers and processors listed in Annex I have agreed to these Clauses in order to ensure compliance with Article 28(3) and (4) of Regulation (EU) 2016/679 and/or Article 29(3) and (4) of Regulation (EU) 2018/1725.

(c)These Clauses apply to the processing of personal data as specified in Annex II.

(d)Annexes I to IV are an integral part of the Clauses.

(e)These Clauses are without prejudice to obligations to which the controller is subject by virtue of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.

(f)These Clauses do not by themselves ensure compliance with obligations related to international transfers in accordance with Chapter V of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.

Clause 2 — Invariability of the Clauses

(a)The Parties undertake not to modify the Clauses, except for adding information to the Annexes or updating information in them.

(b)This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a broader contract, or from adding other clauses or additional safeguards provided that they do not directly or indirectly contradict the Clauses or detract from the fundamental rights or freedoms of data subjects.

Clause 3 — Interpretation

(a)Where these Clauses use the terms defined in Regulation (EU) 2016/679 or Regulation (EU) 2018/1725 respectively, those terms shall have the same meaning as in that Regulation.

(b)These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679 or Regulation (EU) 2018/1725 respectively.

(c)These Clauses shall not be interpreted in a way that runs counter to the rights and obligations provided for in Regulation (EU) 2016/679 / Regulation (EU) 2018/1725 or in a way that prejudices the fundamental rights or freedoms of the data subjects.

Clause 4 — Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties existing at the time when these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 5 - Optional — Docking clause

(a)Any entity that is not a Party to these Clauses may, with the agreement of all the Parties, accede to these Clauses at any time as a controller or a processor by completing the Annexes and signing Annex I.

(b)Once the Annexes in (a) are completed and signed, the acceding entity shall be treated as a Party to these Clauses and have the rights and obligations of a controller or a processor, in accordance with its designation in Annex I.

(c)The acceding entity shall have no rights or obligations resulting from these Clauses from the period prior to becoming a Party.

Section II — obligations of the parties

Clause 6 — Description of processing(s)

The details of the processing operations, in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the controller, are specified in Annex II.

Clause7 — Obligations of the Parties

7.1. Instructions

(a)The processor shall process personal data only on documented instructions from the controller, unless required to do so by Union or Member State law to which the processor is subject. In this case, the processor shall inform the controller of that legal requirement before processing, unless the law prohibits this on important grounds of public interest. Subsequent instructions may also be given by the controller throughout the duration of the processing of personal data. These instructions shall always be documented.

(b)The processor shall immediately inform the controller if, in the processor’s opinion, instructions given by the controller infringe Regulation (EU) 2016/679 / Regulation (EU) 2018/1725 or the applicable Union or Member State data protection provisions.

7.2. Purpose limitation

The processor shall process the personal data only for the specific purpose(s) of the processing, as set out in Annex II, unless it receives further instructions from the controller.

7.3. Duration of the processing of personal data

Processing by the processor shall only take place for the duration specified in Annex II.

7.4. Security of processing

(a)The processor shall at least implement the technical and organisational measures specified in Annex III to ensure the security of the personal data. This includes protecting the data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to the data (personal data breach). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purposes of processing and the risks involved for the data subjects.

(b)The processor shall grant access to the personal data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the contract. The processor shall ensure that persons authorised to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

7.5. Sensitive data

If the processing involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (“sensitive data”), the processor shall apply specific restrictions and/or additional safeguards.

7.6. Documentation and compliance

(a)The Parties shall be able to demonstrate compliance with these Clauses.

(b)The processor shall deal promptly and adequately with inquiries from the controller about the processing of data in accordance with these Clauses.

(c)The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations that are set out in these Clauses and stem directly from Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725. At the controller’s request, the processor shall also permit and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or an audit, the controller may take into account relevant certifications held by the processor.

(d)The controller may choose to conduct the audit by itself or mandate an independent auditor. Audits may also include inspections at the premises or physical facilities of the processor and shall, where appropriate, be carried out with reasonable notice.

(e)The Parties shall make the information referred to in this Clause, including the results of any audits, available to the competent supervisory authority/ies on request.

7.7. Use of sub-processors

(a)OPTION 1: PRIOR SPECIFIC AUTHORISATION: The processor shall not subcontract any of its processing operations performed on behalf of the controller in accordance with these Clauses to a sub-processor, without the controller’s prior specific written authorisation. The processor shall submit the request for specific authorisation at least [SPECIFY TIME PERIOD] prior to the engagement of the sub-processor in question, together with the information necessary to enable the controller to decide on the authorisation. The list of sub-processors authorised by the controller can be found in Annex IV. The Parties shall keep Annex IV up to date.OPTION 2: GENERAL WRITTEN AUTHORISATION: The processor has the controller’s general authorisation for the engagement of sub-processors from an agreed list. The processor shall specifically inform in writing the controller of any intended changes of that list through the addition or replacement of sub-processors at least [SPECIFY TIME PERIOD] in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the concerned sub-processor(s). The processor shall provide the controller with the information necessary to enable the controller to exercise the right to object.

(b)Where the processor engages a sub-processor for carrying out specific processing activities (on behalf of the controller), it shall do so by way of a contract which imposes on the sub-processor, in substance, the same data protection obligations as the ones imposed on the data processor in accordance with these Clauses. The processor shall ensure that the sub-processor complies with the obligations to which the processor is subject pursuant to these Clauses and to Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.

(c)At the controller’s request, the processor shall provide a copy of such a sub-processor agreement and any subsequent amendments to the controller. To the extent necessary to protect business secret or other confidential information, including personal data, the processor may redact the text of the agreement prior to sharing the copy.

(d)The processor shall remain fully responsible to the controller for the performance of the sub-processor’s obligations in accordance with its contract with the processor. The processor shall notify the controller of any failure by the sub-processor to fulfil its contractual obligations.

(e)The processor shall agree a third party beneficiary clause with the sub-processor whereby - in the event the processor has factually disappeared, ceased to exist in law or has become insolvent - the controller shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

7.8. International transfers

(a)Any transfer of data to a third country or an international organisation by the processor shall be done only on the basis of documented instructions from the controller or in order to fulfil a specific requirement under Union or Member State law to which the processor is subject and shall take place in compliance with Chapter V of Regulation (EU) 2016/679 or Regulation (EU) 2018/1725.

(b)The controller agrees that where the processor engages a sub-processor in accordance with Clause 7.7. for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of personal data within the meaning of Chapter V of Regulation (EU) 2016/679, the processor and the sub-processor can ensure compliance with Chapter V of Regulation (EU) 2016/679 by using standard contractual clauses adopted by the Commission in accordance with of Article 46(2) of Regulation (EU) 2016/679, provided the conditions for the use of those standard contractual clauses are met.

Clause 8 — Assistance to the controller

(a)The processor shall promptly notify the controller of any request it has received from the data subject. It shall not respond to the request itself, unless authorised to do so by the controller.

(b)The processor shall assist the controller in fulfilling its obligations to respond to data subjects’ requests to exercise their rights, taking into account the nature of the processing. In fulfilling its obligations in accordance with (a) and (b), the processor shall comply with the controller’s instructions

(c)In addition to the processor’s obligation to assist the controller pursuant to Clause 8(b), the processor shall furthermore assist the controller in ensuring compliance with the following obligations, taking into account the nature of the data processing and the information available to the processor:

(1)the obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of personal data (a ‘data protection impact assessment’) where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons;

(2)the obligation to consult the competent supervisory authority/ies prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk;

(3)the obligation to ensure that personal data is accurate and up to date, by informing the controller without delay if the processor becomes aware that the personal data it is processing is inaccurate or has become outdated;

(4)the obligations in [OPTION 1] Article 32 of Regulation (EU) 2016/679/ [OPTION 2] Articles 33 and 36 to 38 of Regulation (EU) 2018/1725.

(d)The Parties shall set out in Annex III the appropriate technical and organisational measures by which the processor is required to assist the controller in the application of this Clause as well as the scope and the extent of the assistance required.

Clause 9 — Notification of personal data breach

In the event of a personal data breach, the processor shall cooperate with and assist the controller for the controller to comply with its obligations under Articles 33 and 34 of Regulation (EU) 2016/679 or under Articles 34 and 35 of Regulation (EU) 2018/1725, where applicable, taking into account the nature of processing and the information available to the processor.

9.1 Data breach concerning data processed by the controller

(a)in notifying the personal data breach to the competent supervisory authority/ies, without undue delay after the controller has become aware of it, where relevant/(unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons);

(b)in obtaining the following information which, pursuant to [OPTION 1] Article 33(3) of Regulation (EU) 2016/679/ [OPTION 2] Article 34(3) of Regulation (EU) 2018/1725, shall be stated in the controller’s notification, and must at least include:

(1)the nature of the personal data including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;

(2)the likely consequences of the personal data breach;

(3)the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

(c)in complying, pursuant to [OPTION 1] Article 34 of Regulation (EU) 2016/679 / [OPTION 2] Article 35 of Regulation (EU) 2018/1725, with the obligation to communicate without undue delay the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons.

In the event of a personal data breach concerning data processed by the controller, the processor shall assist the controller:

Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

9.2 Data breach concerning data processed by the processor

(a)a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);

(b)the details of a contact point where more information concerning the personal data breach can be obtained;

(c)its likely consequences and the measures taken or proposed to be taken to address the breach, including to mitigate its possible adverse effects.

In the event of a personal data breach concerning data processed by the processor, the processor shall notify the controller without undue delay after the processor having become aware of the breach. Such notification shall contain, at least:

The Parties shall set out in Annex III all other elements to be provided by the processor when assisting the controller in the compliance with the controller’s obligations under [OPTION 1] Articles 33 and 34 of Regulation (EU) 2016/679 / [OPTION 2] Articles 34 and 35 of Regulation (EU) 2018/1725.

Section III — final provisions

Clause 10 — Non-compliance with the Clauses and termination

(a)Without prejudice to any provisions of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725, in the event that the processor is in breach of its obligations under these Clauses, the controller may instruct the processor to suspend the processing of personal data until the latter complies with these Clauses or the contract is terminated. The processor shall promptly inform the controller in case it is unable to comply with these Clauses, for whatever reason.

(b)The controller shall be entitled to terminate the contract insofar as it concerns processing of personal data in accordance with these Clauses if:

(1)the processing of personal data by the processor has been suspended by the controller pursuant to point (a) and if compliance with these Clauses is not restored within a reasonable time and in any event within one month following suspension;

(2)the processor is in substantial or persistent breach of these Clauses or its obligations under Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725;

(3)the processor fails to comply with a binding decision of a competent court or the competent supervisory authority/ies regarding its obligations pursuant to these Clauses or to Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.

(c)The processor shall be entitled to terminate the contract insofar as it concerns processing of personal data under these Clauses where, after having informed the controller that its instructions infringe applicable legal requirements in accordance with Clause 7.1 (b), the controller insists on compliance with the instructions.

(d)Following termination of the contract, the processor shall, at the choice of the controller, delete all personal data processed on behalf of the controller and certify to the controller that it has done so, or, return all the personal data to the controller and delete existing copies unless Union or Member State law requires storage of the personal data. Until the data is deleted or returned, the processor shall continue to ensure compliance with these Clauses.