Europees Comité voor gegevensbescherming

European Data Protection Board - 42nd Plenary session: Presentation of two new sets of SCCs & EDPB adopts statement on ePrivacy Regulation

Friday, 20 November, 2020

Brussels, 20 November - On November 19th, the EDPB met for its 42nd plenary session. During the plenary, the European Commission presented two new sets of draft Standard Contractual Clauses (SCCs) and the EDPB adopted a statement on the future ePrivacy Regulation.
 
The European Commission presented two draft SCCs: one set of SCCs for contracts between controllers and processors, and another one for data transfers outside the EU. The draft controller-processor SCCs are fully new and have been developed by the Commission in accordance with Art. 28 (7) GDPR and Art. 29 (7) of Regulation 2018/1725. These SCCs will have an EU-wide effect and aim to ensure full harmonisation and legal certainty across the EU when it comes to contracts between controllers and their processors. In addition, the Commission presented another set of SCCs for the transfer of personal data to third countries pursuant to Art. 46 (2) (c) GDPR. These SCCs will replace the existing SCCs for international transfers that were adopted on the basis of Directive 95/46 and needed to be updated to bring them in line with GDPR requirements, as well as with the CJEU’s ‘Schrems II’ ruling, and to better reflect the widespread use of new and more complex processing operations often involving multiple data importers and exporters. The Commission has requested a joint opinion from the EDPB and the EDPS on the implementing acts on both sets of SCCs.
 
EDPB Chair Andrea Jelinek said: “The new SCCs for the transfer of personal data to third countries have been highly anticipated, and it is important to point out that they are not a catch-all solution for data transfers post-Schrems II. While the updated SCCs are an important piece of the puzzle and a very important development, data exporters should still make the puzzle complete. The step-by-step approach of the EDPB recommendations on supplementary measures is necessary to bring the level of protection of the data transferred up to the EU standard of essential equivalence. Together with the EDPS, the Board will now thoroughly draft a joint opinion on the two sets of draft SCCs as invited by the European Commission.”
 
Recommendations 1/2020 on supplementary measures: During the plenary, the Members of the Board decided to extend the deadline for the public consultation on the Recommendations on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data from 30 November 2020 until 21 December 2020.

The EDPB adopted a statement on the future ePrivacy Regulation and the future role of supervisory authorities and the EDPB in this context. The EDPB expressed concerns about some new orientations of the discussions in the Council concerning the enforcement of the future ePrivacy Regulation, which could lead to fragmented supervision, procedural complexity and a lack of consistency and legal certainty for individuals and companies. The EDPB underlines that many of the provisions of the future ePrivacy Regulation concern processing of personal data and that many provisions of the GDPR and the ePrivacy Regulation are closely intertwined. Consistent interpretation and enforcement of both sets of rules, when covering personal data protection, would therefore be fulfilled in the most efficient way, if the enforcement of those parts of the ePrivacy Regulation and the GDPR would be entrusted to the same authority.
 
EDPB Chair Andrea Jelinek added: “The oversight of personal data processing activities under the ePrivacy Regulation should  be entrusted  to  the  same  national  authorities that are responsible for the enforcement of the GDPR. This will ensure a high level of data protection, guarantee a level playing field and ensure a harmonised interpretation and enforcement of the personal data processing elements of the ePrivacy Regulation across the EU.”
 
The EDPB also stressed the need to adopt the new Regulation as soon as possible.
 
The EDPB added that this statement is without prejudice to the Board’s previous positions, including its statement of March 2019 and May 2018 and reiterated that the future ePrivacy Regulation should under no circumstance lower the level of protection offered by the current ePrivacy Directive and should complement the GDPR by providing additional strong guarantees for confidentiality and protection of all types of electronic communications.

Note to editors:
Please note that all documents adopted during the EDPB Plenary are subject to the necessary legal, linguistic and formatting checks and will be made available on the EDPB website once these have been completed.

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