2003/490/EC: Commission Decision of 30 June 2003 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data in Argentina (Text with EEA relevance)
Date: 2003-06-30
Institutions: European Commission
Subjects: Argentina, data protection, personal data

5.7.2003

EN

Official Journal of the European Union

L 168/19

II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 30 June 2003

pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate
protection of personal data in Argentina

(Text with EEA relevance)

(2003/490/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995
on the protection of individuals with regard to the processing of personal data and on the free movement
of such data (1), and in particular Article 25(6) thereof,

Whereas:

(1)

(2)

(3)

(4)

Pursuant to Directive 95/46/EC Member States are required to provide that the transfer of personal
data to a third country may take place only if the third country in question ensures an adequate
level of protection and if the Member States' laws implementing other provisions of the Directive
are complied with prior to the transfer.

The Commission may find that a third country ensures an adequate level of protection. In that case,
personal data may be transferred from the Member States without additional guarantees being neces-
sary.

Pursuant to Directive 95/46/EC the level of data protection should be assessed in the light of all the
circumstances surrounding a data transfer operation or a set of data transfer operations, and giving
particular consideration to a number of elements relevant for the transfer and listed in Article 25(2)
thereof. The Working Party on Protection of Individuals with regard to the processing of Personal
Data, established under Article 29 of Directive 95/46/EC, issued guidance on the making of such
assessments (2).

Given the different approaches to data protection in third countries, the adequacy assessment should
be carried out, and any decision based on Article 25(6) of Directive 95/46/EC should be made and
enforced in a way that does not arbitrarily or unjustifiably discriminate against or between third
countries where like conditions prevail, nor constitute a disguised barrier to trade, regard being had
to the Community's present international commitments.

(1) OJ L 281, 23.11.1995, p. 31.
(2) Opinion 12/98, adopted by the Working Party on 24 July 1998: Transfers of personal data to third countries:
applying Articles 25 and 26 of the EU Data Protection Directive (DG MARKT D/5025/98), available on Europa, the
website hosted by the European Commission:
http://europa.eu.int/comm/internal_market/en/dataprot/wpdocs/wpdocs_98.htm.

L 168/20

EN

Official Journal of the European Union

5.7.2003

(5)

(6)

(7)

(8)

(9)

As regards Argentina, the legal standards on the protection of personal data have been provided for
in general and sector-specific rules. Both of them have binding legal effect.

General rules are laid down in the Constitution, the Personal Data Protection Act No 25.326 and
the Regulation approved by Decree No 1558/2001 (hereinafter ‘Argentine Law’).

The Argentine Constitution provides for a special judicial remedy for the protection of personal
data, known as ‘habeas data’. This is a subcategory of the procedure enshrined in the Constitution
for the protection of constitutional rights and therefore makes the protection of personal data a
fundamental right. According to Article 43.3 of the Constitution any person is entitled, under the
‘habeas data’ rule, to know the content and purpose of all the data pertaining to him or her
contained in public records or data banks, or in private ones whose purpose is to provide reports.
According to that Article in case of falsehood of information or its use for discriminatory purposes,
a person will be able to demand the deletion, correction, confidentiality or update of the data
contained in the above records. The Article will not affect the secrecy of journalistic information
sources. Argentine jurisprudence has recognised ‘habeas data’ as a fundamental and directly applic-
able right.

The Personal Data Protection Act No 25.326 of 4 October 2000 (hereinafter ‘the Act’) develops and
widens the Constitutional provisions. It contains provisions relating to general data protection prin-
ciples, the rights of data subjects, the obligations of data controllers and data users, the supervisory
authority or controlling body, sanctions, and rules of procedure in seeking ‘habeas data’ as a judicial
remedy.

The Regulation, approved by Decree No 1558/2001 of 3 December 2001 (hereinafter ‘the Regula-
tion’), lays down rules for the enactment of the Act, supplements its provisions, and clarifies points
of the Act that may be subject to diverging interpretation.

(10) Argentine Law covers the protection of personal data recorded in data files, registers, data banks or
other technical means, which are public; and the protection of personal data recorded in data files,
registers, data banks or other technical means which are private, whose purpose is to provide
reports. This includes those which go beyond an exclusively personal use, and those which are
intended for the assignment or transfer of personal data, irrespective of whether the circulation of
the data or information produced is performed for payment or free of charge.

(11)

Certain provisions of the Act apply uniformly throughout Argentina. They include general provi-
sions and provisions concerning general data protection principles, rights of the data subjects, obli-
gations of data controllers and users of data files, registers and data banks, criminal sanctions, and
the existence and main features of the ‘habeas data’ judicial remedy as established in the Constitu-
tion.

(12) Other provisions of the Act apply to registers, data files, databases or data banks which are intercon-
nected through networks at inter-jurisdictional (meaning ‘interprovincial’), national or international
level, and which are considered as falling within federal jurisdiction. They concern the control exer-
cised by the supervisory authority, sanctions imposed by the supervisory authority, and the rules of
procedure concerning the ‘habeas data’ judicial remedy. Other kinds of registers, data files, databases
or data banks should be regarded as falling under provincial jurisdiction. The provinces may issue
legal provisions on these matters.

(13) Data protection provisions are also contained in a number of legal instruments regulating different

sectors, such as credit card transactions, statistics, banking or health.

5.7.2003

EN

Official Journal of the European Union

L 168/21

(14) Argentine Law covers all the basic principles necessary for an adequate level of protection for
natural persons, even if exceptions and limitations are also provided in order to safeguard important
public interests. The application of these standards is guaranteed by a special, simplified and quick
judicial remedy for the protection of personal data, known as ‘habeas data’, along with the general
judicial remedies. The Act provides for the establishment of a data protection controlling body
charged with taking all actions necessary for compliance with the objectives and provisions of the
Act and endowed with powers of investigation and intervention. Pursuant to the Regulation, the
National Directorate for the Protection of Personal Data was established as the controlling body.
Argentine Law provides for effective dissuasive sanctions, of both an administrative and a criminal
nature. Furthermore, the provisions of Argentine law regarding civil liability (both contractual and
extra-contractual) apply in the event of unlawful processing which is prejudicial to the persons
concerned.

(15)

The Argentine government has provided explanations and assurances as to how the Argentine law
is to be interpreted, and has given assurances that the Argentine data protection rules are imple-
mented in accordance with such interpretation. This Decision is based on these explanations and
assurances, and is therefore conditional upon them. In particular, this decision relies on the explana-
tions and assurances given by the Argentine authorities as to how the Argentine law is to be inter-
preted as regards which situations fall within the scope of the Argentine law in data protection.

(16) Argentina should therefore be regarded as providing an adequate level of protection for personal

data as referred to in Directive 95/46/EC.

(17)

(18)

In the interest of transparency and in order to safeguard the ability of the competent authorities in
the Member States to ensure the protection of individuals as regards the processing of their personal
data, it is necessary to specify the exceptional circumstances in which the suspension of specific data
flows may be justified, notwithstanding the finding of adequate protection.

The Working Party on Protection of Individuals with regard to the processing of Personal Data
established under Article 29 of Directive 95/46/EC has delivered an opinion on the level of protec-
tion of personal data in Argentina (1), which has been taken into account in the preparation of this
Decision.

(19)

The measures provided for in this Decision are in accordance with the opinion of the Committee
established under Article 31(1) of Directive 95/46/EC,

HAS ADOPTED THIS DECISION:

Article 1

For the purposes of Article 25(2) of Directive 95/46/EC, Argentina is regarded as providing an adequate
level of protection for personal data transferred from the Community.

Article 2

This Decision concerns only the adequacy of protection provided in Argentina with a view to meeting the
requirements of Article 25(1) of Directive 95/46/EC and does not affect other conditions or restrictions
implementing other provisions of that Directive that pertain to the processing of personal data within the
Member States.

(1) Opinion 4/2002 on the level of protection of personal data in Argentina — WP 63 of 3 October 2002 available at

http://europa.eu.int/comm/internal_market/en/dataprot/wpdocs/index.htm.

L 168/22

EN

Official Journal of the European Union

5.7.2003

Article 3

1. Without prejudice to their powers to take action to ensure compliance with national provisions
adopted pursuant to provisions other than Article 25 of Directive 95/46/EC, the competent authorities in
Member States may exercise their existing powers to suspend data flows to a recipient in Argentina in
order to protect individuals with regard to the processing of their personal data in cases where:

(a) a competent Argentine authority has determined that the recipient is in breach of the applicable stan-

dards of protection; or

(b) there is a substantial likelihood that the standards of protection are being infringed; there are reason-
able grounds for believing that the competent Argentine authority is not taking or will not take
adequate and timely steps to settle the case at issue; the continuing transfer would create an imminent
risk of grave harm to data subjects and the competent authorities in the Member State have made
reasonable efforts in the circumstances to provide the party responsible for processing established in
Argentina with notice and an opportunity to respond.

The suspension shall cease as soon as the standards of protection are assured and the competent authority
concerned in the Community is notified thereof.

2. Member States shall inform the Commission without delay when measures are adopted on the basis
of paragraph 1.

3.
The Member States and the Commission shall inform each other of cases where the action of bodies
responsible for ensuring compliance with the standards of protection in Argentina fails to secure such
compliance.

If the information collected under paragraphs 1, 2 and 3 provides evidence that any body responsible
4.
for ensuring compliance with the standards of protection in Argentina is not effectively fulfilling its role,
the Commission shall inform the competent Argentine authority and, if necessary, present draft measures
in accordance with the procedure referred to in Article 31(2) of Directive 95/46/EC with a view to
repealing or suspending this Decision or limiting its scope.

Article 4

This Decision may be amended at any time in the light of experience with its functioning or of

1.
changes in Argentine legislation, its implementation and interpretation.

The Commission shall monitor the functioning of this Decision and report any pertinent findings to the
Committee established under Article 31 of Directive 95/46/EC, including any evidence that could affect the
finding in Article 1 of this Decision that protection in Argentina is adequate within the meaning of Article
25 of Directive 95/46/EC and any evidence that this Decision is being implemented in a discriminatory
way.

The Commission shall, if necessary, present draft measures in accordance with the procedure referred

2.
to in Article 31(2) of Directive 95/46/EC.

Member States shall take all the measures necessary to comply with this Decision at the latest at the end of
a period of 120 days from the date of its notification to the Member States.

Article 5

This Decision is addressed to the Member States.

Article 6

Done at Brussels, 30 June 2003.

For the Commission

Frederik BOLKESTEIN

Member of the Commission