In a message dated 19/04/2001 11:39:40 GMT Daylight Time,
[log in to unmask] writes:
<< To rely on the performance of a contract (or entering into a contract)
exemption also has its drawbacks. The contract must be between the data
controller and the data subject. Multinationals have complex structures
consisting of numerous legal entities. The employment contract may not be
with the data controller. If it is, the data may not necessarily be exported
for 'the performance of a contract', for example circulating information or
commenting on possible candidates for vacant positions in associated
companies. >>
------------------------
Fiona is right. In addition, in order to be "necessary" for the contract you
would probably have to show that the employee contract could not be fulfilled
by keeping the data within the EEA. If, for example, the UK subsidiary had
no payroll facilities (unlikely) and no suitable payroll contractor (data
processor) could provide the service, it may be "necessary" to transfer.
Personnel data, rather than payroll, is tricky. I would advise that informed
consent is obtained. A US "parent" company very rarely operates a "branches
only" policy and often has UK headquarters with full payroll and personnel
functions. This is mainly to meet EU employment and trading rules. To argue
that these functions cannot be fulfilled within Europe may not be in the US
company's best interests.
Ian Buckland
MD
Keep IT Legal Ltd
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