Territorial Scope and Data Transfer Rules in the GDPR: Realising the EU’s Ambition of Borderless Data Protection

36 Pages Posted: 16 Apr 2021

See all articles by Christopher Kuner

Christopher Kuner

Vrije Universiteit Brussel (VUB) - Law, Science, Technology & Society Research Group; Maastricht University - Faculty of Law; Centre for European Legal Studies

Date Written: April 16, 2021

Abstract

Legal protection of personal data that are transferred or processed outside the EU’s territorial boundaries has been strengthened in recent years, both in the GDPR and by the Court of Justice. The main mechanisms for guarding against data protection threats originating from outside the EU’s borders are rules on the territorial scope of EU data protection law (Article 3 GDPR), which allow its application to data processing by non-EU parties, and data transfer restrictions (Chapter V GDPR), which protect personal data that are transferred to third countries. The GDPR does not indicate how these two mechanisms interact, which has led to initiatives to disapply data transfer rules when data processed outside the EU are already subject to it. However, there has been little transparency about these initiatives or explanation of their rationale, despite their significance for the protection of EU data and their impact on the GDPR’s global reach. For the protection of EU data against external threats to be both legally sound and effective in practice, it is necessary to examine the nature and interaction of rules on territorial scope and data transfers, in order to determine how the EU’s vision of cross-border data protection can be realised.

Keywords: Data protection, GDPR, international data transfers, territorial scope, EU law

Suggested Citation

Kuner, Christopher, Territorial Scope and Data Transfer Rules in the GDPR: Realising the EU’s Ambition of Borderless Data Protection (April 16, 2021). University of Cambridge Faculty of Law Research Paper No. 20/2021, Available at SSRN: https://ssrn.com/abstract=3827850 or http://dx.doi.org/10.2139/ssrn.3827850

Christopher Kuner (Contact Author)

Vrije Universiteit Brussel (VUB) - Law, Science, Technology & Society Research Group ( email )

Pleinlaan 2
Brussels, 1050
Belgium

Maastricht University - Faculty of Law ( email )

P.O. Box 616
Maastricht, 6200
Netherlands

Centre for European Legal Studies ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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