On 12 June 2014, in a letter from the Article 29 Data Protection Working Party to the President of the European Parliament, the Working Party has defended, and urged the EU institutions to discuss, Binding Corporate Rules for Processors (BCR-P) in respect of the forthcoming EU General Data Protection Regulation.
In its letter, the Working Party clarifies its views on BCR-P, outlines the safeguards that BCR-P offer and addresses concerns that have led some to call for the dropping of BCR-P. The letter suggests that these issues should be covered during future trialogues between the EU Council, the European Commission (whom both received copies of the letter) and the European Parliament.
Binding Corporate Rules (BCR) represent one of the ways that a data controller can overcome the general prohibition contained in the EU Data Protection Directive (95/46/EC) on cross-border transfers of personal data to countries outside the EEA that do not offer adequate levels of data protection. Broadly, BCR are legally enforceable corporate rules applied by company groups which, on the approval of the relevant national data protection authority, are deemed to ensure sufficient protection for international transfers between group companies.
In December 2011, the European Commission announced that BCR would be updated in the new EU General Data Protection Regulation. Whilst BCR only apply to data controllers, the Working Party is a proponent for BCR-P (which apply similarly to data processors rather than data controllers) and, in June 2012, established a BCR-P framework. In brief, BCR-P permit data processors, on the instruction of data controllers, to forward personal data to their group companies, otherwise known as “sub-processing”. The Working Party has officially permitted companies to apply for BCR-P since January 2013. To date, three international organisations have BCR-P approved by their national data protection authorities, with a further 10 currently under review.
In Defence of BCR-P
In its letter, the Working Party encloses an explanatory document setting out the main guarantees offered to data controllers, data subjects and data protection authorities generally, relating to:
- Use of external sub-processors;
- Conflict between an applicable legislation and BCR-P and/or Service agreements / Access by law enforcement authorities;
- Controllers’ rights;
- Data subjects’ rights;
- Processors’ obligations towards data protection authorities; and
- Implementation of accountability measures.
The Working Party also stresses the high level of protection that BCR-P offer to international transfers of personal data, which, according to the Working Party represent the “optimal solution” to encourage data protection principles abroad. In the alternative, the Working Party suggests that model clauses or Safe Harbour do not offer a comparable level of protection.
In response to calls for the European Parliament to drop BCR-P from future legislation due to a lack of guarantees to frame sub-processing activities, the Working Party clarifies that BCR-P offer greater levels of protection that those currently provided by the European Parliament. Furthermore, the Working Party concludes that to drop BCR-P would create legal uncertainty and represent a loss generally to those organisations with approved BCR-P or those currently applying for such approval.