Hi Phil,
Not sure I agree that a contract would be able to be used under Art 46(2) - surely it would be more likely to come under Art 46(3)(a), and therefore need authorisation from the supervisory authority?
Regards,
Peter Dinsdale
Data Protection Consultant
Perfect Image /
T: 0191 238 0111
www.perfect-image.co.uk
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-----Original Message-----
From: This list is for those interested in Data Protection issues <[log in to unmask]> On Behalf Of Phil Bradshaw
Sent: 28 September 2019 13:05
To: [log in to unmask]
Subject: Re: [data-protection] Friday Question - No Deal Brexit and EU processors
It is an unresolved question. Official guidance such as ICO goes on about SCCs, but there are no SCCs covering a 'transfer' from an EU processor to a UK controller.
On the other hand I would assume you have a GDPR compliant contract with the EU processor (Art 28(3)). There is then a theoretical conflict between Art28(3) contract, post brexit if UK is a third country, and Art 44. Common sense says Art 28(3) takes precedence. After all it is the controllers data, and not acting on controllers instructions would leave the processor acting as a controller with all sorts of consequences.
In my view, the conflict is illusory, and the contract is an appropriate safeguard within A46(1). It may not be listed in 46(2) but there is nothing in 46 to suggest that the 46(2) safeguards are the only possible ones.
We don't have many EU processors where I work, but where we have, we have obtained written assurances that they will not regard transfers under the processing contract as excluded in the event of UK becoming a third country.
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