2003/821/EC: Commission Decision of 21 November 2003 on the adequate protection of personal data in Guernsey (Text with EEA relevance) (notified under document number C(2003) 4309)
Date: 2003-11-21
Institutions: European Commission
Subjects: Channel Islands, administrative unit, confidentiality, cross-frontier data flow, data protection, personal data

25.11.2003

EN

Official Journal of the European Union

L 308/27

COMMISSION DECISION

of 21 November 2003

on the adequate protection of personal data in Guernsey

(notified under document number C(2003) 4309)

(Text with EEA relevance)

(2003/821/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(5)

Having regard to the Treaty establishing the European
Community,

Having regard to Directive 95/46/EC of the European Parlia-
ment 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,

After consulting the Working Party on Protection of Individuals
with regard to the processing of personal data (2),

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 provi-
sions 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 necessary.

Pursuant to Directive 95/46/EC the level of data protec-
tion should be assessed in the light of all the circum-
stances surrounding a data transfer operation or a set of
data transfer operations, and giving particular considera-
tion to a number of elements relevant for the transfer
and listed in Article 25(2) thereof.

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 5/2003 on the level of protection of personal data in
Guernsey, adopted by the Working Party on 13 June 2003, available
at http://europa.eu.int/comm/internal_market/privacy/workingroup/
wp2003/wpdocs03_en.htm

The Bailiwick of Guernsey is one of the dependencies of
the British Crown (being neither part of
the United
Kingdom nor a colony) that enjoys full independence,
except for international relations and defence which are
the responsibility of the United Kingdom Government.
The Bailiwick of Guernsey should therefore be consid-
ered as a third country within the meaning of the Direc-
tive.

(6) With effect from August 1987, the United Kingdom's
ratification of the Council of Europe Convention on the
Protection of
Individuals with regard to automatic
processing of personal data (Convention No 108) was
extended to the Bailiwick of Guernsey.

(7)

(8)

(9)

As regards the Bailiwick of Guernsey, the legal standards
on the protection of personal data based on the stan-
dards set out in Directive 95/46/EC have been provided
for in the Data Protection (Bailiwick of Guernsey) Law
2001, which entered into force on 1 August 2002.

Sixteen statutory instruments (orders) have also been
adopted in Guernsey in 2002, laying down specific rules
concerning issues such as subject access, processing of
sensitive data and notification to the data protection
authority. These instruments complement the law.

The legal standards applicable in Guernsey cover all the
basic principles necessary for an adequate level of
protection for natural persons. The application of these
standards is guaranteed by judicial remedy and by inde-
pendent supervision carried out by the authorities, such
as the Data Protection Commissioner
invested with
powers of investigation and intervention.

(10) Guernsey should therefore be regarded as providing an
adequate level of protection for personal data as referred
to in Directive 95/46/EC.

(11)

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.

L 308/28

EN

Official Journal of the European Union

25.11.2003

(12)

The measures provided for in this Decision are in accor-
dance 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, the
Bailiwick of Guernsey is considered as providing an adequate
level of protection for personal data transferred from the
Community.

Article 2

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

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
in
existing powers to suspend data flows to a recipient
Guernsey in order to protect individuals with regard to the
processing of their personal data in the following cases:

(a) where a competent Guernsey authority has determined that
the recipient is in breach of the applicable standards of
protection; or

(b) where there is a substantial likelihood that the standards of
protection are being infringed, there are reasonable grounds
for believing that the competent Guernsey 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 Guernsey with
notice and an opportunity to respond.

2.
The suspension shall cease as soon as the standards of
protection are assured and the competent authority of the
Member States concerned is notified thereof.

Article 4

1. Member States shall
delay when measures are adopted on the basis of Article 3.

inform the Commission without

The Member States and the Commission shall

inform
2.
each other of cases where the action of bodies responsible for
ensuring compliance with the standards of protection in
Guernsey fails to secure such compliance.

If the information collected under Article 3 and under
3.
paragraphs 1 and 2 of this Article provides evidence that any
body responsible for ensuring compliance with the standards of
protection in Guernsey is not effectively fulfilling its role, the
Commission shall
inform the competent Guernsey 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 5

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 Guernsey 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.

Article 6

Member States shall take all the measures necessary to comply
with the Decision within four months of the date of its notifica-
tion.

Article 7

This Decision is addressed to the Member States.

Done at Brussels, 21 November 2003.

For the Commission

Frederik BOLKESTEIN

Member of the Commission