CHAPTER VTransfers of personal data to third countries or international organisations

Article 46Transfers subject to appropriate safeguards

F11.

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F21A.

A transfer of personal data to a third country or an international organisation by a controller or processor is made subject to appropriate safeguards only—

(a)

in a case in which—

(i)

safeguards are provided in connection with the transfer as described in paragraph 2 or 3 or regulations made under Article 47A(4), and

(ii)

the controller or processor, acting reasonably and proportionately, considers that the data protection test is met in relation to the transfer or that type of transfer (see paragraph 6), or

(b)

in a case in which—

(i)

safeguards are provided in accordance with paragraph 2(a) by an instrument that is intended to be relied on in connection with the transfer or that type of transfer, and

(ii)

each public body that is a party to the instrument, acting reasonably and proportionately, considers that the data protection test is met in relation to the transfers, or types of transfer, intended to be made in reliance on the instrument (see paragraph 6).

2.

The F3... safeguards referred to in F4paragraph 1A(a) may be provided for, without requiring any specific authorisation from F5the Commissioner, by:

(a)

a legally binding and enforceable instrument between F6a public body and another relevant person or persons;

(b)

binding corporate rules F7approved in accordance with Article 47;

F8(c)

standard data protection clauses specified in regulations made by the Secretary of State under F9Article 47A(1) and for the time being in force;

F10(d)

standard data protection clauses specified in a document issued (and not withdrawn) by the Commissioner F11for the purposes of this Article under section 119A of the 2018 Act and for the time being in force;

(e)

an approved code of conduct pursuant to Article 40 together with binding and enforceable commitments of the controller or processor in the third country to apply the F12safeguards provided by the code, including as regards data subjects' rights; or

(f)

an approved certification mechanism pursuant to Article 42 together with binding and enforceable commitments of the controller or processor in the third country to apply the F13safeguards provided by the mechanism, including as regards data subjects' rights.

3.

F14With authorisation from the Commissioner, the F15... safeguards referred to in F16paragraph 1A(a) may also be provided for F17... by:

(a)

contractual clauses between the controller or processor and the controller, processor or the recipient of the personal data in the third country or international organisation; or

(b)

provisions to be inserted into administrative arrangements between F18a public body and another relevant person or persons which include enforceable and effective data subject rights.

F194.

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F195.

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F206.

For the purposes of this Article, the data protection test is met in relation to a transfer, or a type of transfer, of personal data if, after the transfer, the standard of the protection provided for the data subject with regard to that personal data by the safeguards required under paragraph 1A, and (where relevant) by other means, would not be materially lower than the standard of the protection provided for the data subject with regard to the personal data by or under—

(a)

this Regulation,

(b)

Part 2 of the 2018 Act, and

(c)

Parts 5 to 7 of that Act, so far as relevant to processing to which this Regulation applies.

7.

For the purposes of paragraph 1A(a)(ii) and (b)(ii), what is reasonable and proportionate is to be determined by reference to all the circumstances, or likely circumstances, of the transfer or type of transfer, including the nature and volume of the personal data transferred.

8.

In this Article—

(a)

references to the protection provided for the data subject are to that protection taken as a whole;

(b)

“relevant person” means a public body or another person exercising functions of a public nature.