European Data Protection Board Establishes New Procedures for International Data Transfer Approvals

The European Data Protection Board (EDPB) has published a detailed document outlining new procedures for authorizing contractual clauses under Article 46(3)(a) of the GDPR and for adopting Standard Contractual Clauses (SCCs) under Article 46(2)(d). This development represents a significant step in standardizing how companies can legally transfer personal data from the EU to countries without adequate data protection, addressing a critical compliance gap that has left many organizations uncertain about their international data transfer mechanisms.

What Happened: A New Framework for International Data Transfers

The EDPB document establishes a formal cooperation procedure between the European Commission, national data protection authorities (DPAs), and the EDPB itself when reviewing contractual clauses for international data transfers. This process applies to two distinct scenarios:

1. Authorization of contractual clauses under Article 46(3)(a) GDPR - These are clauses that companies can develop themselves for specific transfer situations, requiring approval from the competent DPA.

2. Adoption of Standard Contractual Clauses under Article 46(2)(d) GDPR - These are the widely-used SCCs developed by the European Commission, which now require a more coordinated review process.

The document provides a step-by-step roadmap for how these reviews will be conducted, including timelines, responsibilities, and the specific criteria that will be applied. This replaces what had been an inconsistent and sometimes opaque process where different EU member states might interpret requirements differently.

Legal Basis and Regulatory Context

The procedures are grounded in several key GDPR provisions:

• Article 46(3)(a): Allows for "appropriate safeguards" through contractual clauses that require authorization by the competent supervisory authority. These are typically used when neither an adequacy decision nor SCCs are suitable for a particular transfer situation.

• Article 46(2)(d): Provides the legal basis for Standard Contractual Clauses adopted by the European Commission, which have been the most common mechanism for international data transfers since the GDPR's implementation.

• Article 93: Establishes the cooperation mechanism between the Commission and DPAs, which the EDPB document now operationalizes.

The timing is significant. The EDPB's action comes in response to growing complexity in international data transfers following the Schrems II decision, which invalidated the Privacy Shield framework and emphasized that companies must conduct Transfer Impact Assessments (TIAs) when using SCCs. The new procedures aim to provide clearer guidance while maintaining the high protection standards required by EU law.

Impact on Companies and Data Controllers

For Companies Using Standard Contractual Clauses

The new process introduces several changes that will affect how organizations approach international data transfers:

1. Enhanced Scrutiny for SCCs While the existing SCC modules (for controller-to-controller, controller-to-processor, processor-to-processor, and processor-to-controller transfers) remain valid, the review process for any updates or new versions will now involve multiple stakeholders. Companies can expect more detailed assessments of whether the clauses provide "appropriate safeguards" in practice, not just in theory.

2. Longer Approval Timelines The document establishes specific timeframes for each stage of the review process. For SCCs, the Commission must provide an initial assessment within 12 weeks, with potential extensions for complex cases. This means companies planning new international data transfers should build additional time into their compliance timelines.

3. Requirements for Supplementary Measures The procedures emphasize that contractual clauses alone may be insufficient. Companies will need to demonstrate how they address residual risks identified in their Transfer Impact Assessments. The EDPB has indicated that it will scrutinize whether supplementary measures (technical, organizational, or contractual) are adequate for the specific transfer context.

For Companies Developing Custom Contractual Clauses

Organizations seeking authorization for their own contractual clauses under Article 46(3)(a) face an even more rigorous process:

1. Mandatory DPA Consultation The competent DPA must be involved from the early stages. The document encourages companies to engage with their supervisory authority before finalizing clause drafts, potentially avoiding costly revisions later.

2. Standardized Submission Requirements The EDPB has outlined specific documentation that must accompany any authorization request, including:

• Detailed description of the transfer context
• Transfer Impact Assessment results
• Explanation of why SCCs are unsuitable
• Analysis of how the clauses provide equivalent protection

3. Potential for DPA Coordination For transfers involving multiple EU member states, the lead DPA will coordinate with other relevant authorities. This could streamline the process for pan-European companies but also means that objections from any single DPA could delay or block authorization.

Practical Compliance Implications

Immediate Actions for Organizations

1. Review Existing Transfer Mechanisms Companies should audit their current international data transfers to determine which fall under the new procedures. This includes reviewing existing SCC implementations and identifying any transfers that might require custom contractual clauses.

2. Update Transfer Impact Assessments The EDPB document reinforces the importance of TIAs. Organizations should ensure their assessments are comprehensive and regularly updated, particularly when the legal or political environment in the destination country changes.

3. Engage with Supervisory Authorities For companies considering custom contractual clauses, early engagement with the relevant DPA is now strongly recommended. The document suggests that pre-submission consultations can significantly improve the chances of successful authorization.

4. Monitor DPA Guidance Individual national DPAs may issue their own guidance interpreting the EDPB procedures. Companies should monitor their local DPA's communications for specific implementation details.

Long-term Strategic Considerations

The new framework signals a shift toward more coordinated EU-wide oversight of international data transfers. This has several strategic implications:

Increased Compliance Costs The more rigorous review processes will likely increase both time and financial costs associated with international data transfers. Companies may need to allocate additional resources for compliance activities, including legal reviews and DPA consultations.

Potential for More Consistent Enforcement With standardized procedures, companies should experience more predictable outcomes across different EU member states. This reduces the risk of conflicting interpretations that have complicated compliance efforts in the past.

Emphasis on Documentation The EDPB's focus on thorough documentation means companies must maintain detailed records of their transfer mechanisms, TIAs, and compliance decisions. This documentation will be crucial during regulatory audits or investigations.

Broader Context: The Evolving International Transfer Landscape

The EDPB's new procedures must be understood within the broader context of international data transfers post-Schrems II:

1. The Schrems II Legacy The July 2020 decision by the Court of Justice of the European Union (CJEU) that invalidated the EU-US Privacy Shield framework created a compliance vacuum that the EDPB is now addressing systematically. While SCCs remained valid, the court emphasized that they require supplementary measures and that companies must assess whether the laws in the destination country impair the effectiveness of those safeguards.

2. The US-EU Data Privacy Framework The European Commission's adequacy decision for the United States under the new Data Privacy Framework (July 2023) provides an alternative to SCCs for US transfers. However, the EDPB's procedures remain relevant for transfers to other countries without adequacy decisions and for companies that prefer SCCs over the new framework.

3. Global Regulatory Convergence The EDPB's approach reflects a broader trend toward more coordinated international data protection regulation. Similar developments are occurring in other jurisdictions, including the UK's post-Brexit data protection regime and evolving privacy laws in Asia and Latin America.

Looking Ahead: What Changes and What Stays the Same

What Changes

• Process Standardization: Companies will experience more consistent review processes across EU member states.
• Enhanced Documentation Requirements: The burden of proof for demonstrating adequate protection has increased.
• Longer Timelines: The approval process for both SCCs and custom clauses will take more time.
• Greater DPA Involvement: Supervisory authorities will play a more active role in reviewing transfer mechanisms.

What Stays the Same

• SCCs as Primary Mechanism: Standard Contractual Clauses remain the most practical tool for most international transfers.
• Requirement for Supplementary Measures: Companies must still address residual risks through additional safeguards.
• Transfer Impact Assessments: TIAs continue to be mandatory for all international transfers to non-adequate countries.
• Accountability Principle: Organizations remain responsible for ensuring their transfers comply with GDPR requirements.

Practical Recommendations for Compliance Teams

1. Develop a Transfer Inventory Create a comprehensive map of all international data transfers, including the legal basis for each transfer and the mechanisms in place.

2. Standardize Documentation Processes Implement consistent templates for Transfer Impact Assessments and compliance documentation that can be adapted for different transfer contexts.

3. Build DPA Relationships Establish communication channels with relevant supervisory authorities, particularly if your organization frequently uses custom contractual clauses.

4. Monitor Implementation Guidance Subscribe to EDPB and DPA communications to stay informed about how the new procedures are being applied in practice.

5. Consider Alternative Transfer Mechanisms Evaluate whether other mechanisms, such as the new US-EU Data Privacy Framework or binding corporate rules, might be more suitable for your organization's transfer patterns.

The EDPB's new cooperation procedures represent a maturation of the EU's approach to international data transfers. While they introduce additional complexity and longer timelines, they also provide much-needed clarity and consistency. For companies operating globally, these changes underscore the importance of treating international data transfers not as a one-time compliance exercise but as an ongoing operational requirement that demands regular review and adjustment.

For organizations seeking the official document and additional guidance, the EDPB has published the full text on their website at edpb.europa.eu. Companies should also consult the European Commission's pages on international data transfers for practical implementation resources.