At the beginning of June 2021, the European Commission approved the new Standard Contractual Clauses (SCC) for the transfer of data to third countries. The new clauses will enter into force on June 27, 2021 and will be effective from September 27, 2021.
Privacy: New Standard Contractual Clauses
WHAT ARE THE SCC?
The Standard Contractual Clauses are a legal tool to guarantee the transfer of data to third countries pursuant to art. 46 paragraph 2 lett. c) GDPR, and more specifically to countries that do not guarantee an adequate level of protection of personal data according to the GDPR.
Such set of documents is subject to a prior assessment from the European Commission, following which the SCC can be directly incorporated into contracts, in order to prove the compliance of the data transfer with the European legislation.
HOW HAVE THE SCC CHANGED?
The previous set of SCC, whose approval dates back to 2010, were considered no longer valid after the sentence of 16 July 2020 issued by the Court of Justice of the European Union, called "Schrems II". The sentence declared the invalidity of the Privacy Shield.
Hence, the European Commission has adapted the SCC to the new requirements of the GDPR and to the jurisprudence of the Court of Justice, providing a discipline applicable no longer to two data transfer flows, but to four:
from Data Controller to Data Controller;
from Data Controller to Data Processor;
from Data Processor to Data Processor;
from Data Processor to Data Controller.
Furthermore, the SCC can also be signed by any sub-processors.
WHAT IS THE ADJUSTMENT PERIOD FOR ENTITIES?
The new SCC, whic were published in the Official Journal of the European Union of 7 June 2021, will enter into force on 27 June 2021 and will be effective starting from September 27, 2021.
Thus, from September 27, 2021, entities will no longer be able to include the previous version of SCC in contracts.
Finally, entities that have adopted the previous version may benefit of a transition period of 18 months (up to December 27, 2022), to replace the previous standard contractual clauses with the new ones.