If the deadline for adoption of the Directive has passed, it's become
law in Spain anyway, irrespective of whether Spain has domestic
implementing provisions.
Whether it is enforceable against you or not, will depend on whether you
are an emanation of the State (as defined in Marshall v Southampton
Health Authority)
But in that case any aggrieved person who can't get a remedy against you
(becuase you are not a public body) can sue the Spanish government for
the damage they suffer (Francovich v Italy).
Clare Watts wrote:
> Dear list members,
>
>
> I have a doosey for you.
>
> The theory is: I would like to arrange a one off transfer to a seperate
> legal entity, (but part of our company "group") a selection personal data
> (name only) to perform a processing function for us. The company is based
> in the US. We have the appropriate intercompany agreements in place.
>
> We can do this with UK data and in addition, we already have customer
> consent.
>
> I have asked if we can do this with some Spanish data. The response is
> that we can, but because Spain does not adopt EU directive until December
> 2007, they do not have the protection of this and therefore the data must
> be sent via the UK first to then be transferred outside of the EEA via the
> UK and thus avoid Spanish requirements.
>
> Now I have had this before, where people believe that if you transfer data
> within Europe, to the country with the weakest interpretation of the
> appropriate part of the Directive, you can send it outside the EEA without
> adherence to the law of the country of origin, but I just don't buy it.
> If it was that simple, surely we'd all be doing that?
>
> My worry is that I am sure I have read in the directive that the law of
> the country of origin must be followed, (i.e. not the country that the
> data is finally transfered from.)
>
> In addition, has anyone heard of Spain NOT yet adopting the EU directive?
> I thought all member states had to adopt it some time ago?
>
> Any comments or advice will be gratefully received.
>
>
> Clare
>
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