On November 14, 2019, the EDPB adopted a final version of Guidelines 3/2018 on the territorial scope of the GDPR (Art. 3). This takes into account the contributions and feedback that the EDPB received during a public consultation on a draft version of the guidelines (see here).

The draft version of the guidelines raised many questions, which the final version aims to address by clarifying that:

  1. Article 3 determines whether the GDPR applies to a processing activity (e., purpose for processing personal data) and not whether a controller or processor is subject to the GDPR.
  2. The mere presence of an employee in the EU does not suffice to trigger the application of the GDPR; in order for the processing activity to be covered by the GDPR, it must be carried out in the context of the activities of the EU-based employee.
  3. A processing activity will not fall outside the scope of Art. 3(1) simply because the controller in the EU instructs a non-EU processor to carry out the processing.
  4. The inadvertent or incidental offering of goods or services to individuals in the EU (g., to non-EU individuals travelling in the EU) does not trigger the application of the GDPR.
  5. The provision of certain targeted advertisement to individuals in the EU, for example, on the basis of their location, triggers the application of the GDPR because it qualifies as monitoring the behavior of individuals in the EU (Art. 3(2)(b)).
  6. A non-EU processor that targets or monitors the behavior of EU individuals on behalf of a controller (g., carries out a social media campaign targeting individuals in the EU or stores data of an app offered to individuals in the EU), must comply with the GDPR with regard to that processing.
  7. Where requested by the Supervisory Authority, the GDPR representative (Art. 27) must be able to produce a copy of the record of processing operations.
  8. The GDPR representative can only be held directly liable for violations of its own obligations, such as under Art. 30 and 58(1)(a) (record of processing operations and cooperation with Supervisory Authorities) and not for violations committed by the non-EU controller or processor.
  9. The GDPR representative of a non-EU controller apparently cannot be a processor of that controller. The EDPB does not explain why this is. Given the limited direct liability of the representative, it is unclear why a processor could not be the liaison of a controller and the “addressee” of corrective measures imposed on the controller.

The EDPB will increase international cooperation in order to facilitate enforcement against controllers and processors established in third countries and against international organizations (Art. 50).

Photo of Kristof Van Quathem Kristof Van Quathem

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of…

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of advising clients on government affairs strategies concerning the lawmaking, to compliance advice on the adopted laws regulations and guidelines, and the representation of clients in non-contentious and contentious matters before data protection authorities.

Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as Privacy International and the European security agency, ENISA.

Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.