2008/393/EC: Commission Decision of 8 May 2008 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data in Jersey (notified under document number C(2008) 1746) (Text with EEA relevance)
Date: 2008-05-28
Institutions: European Commission
Subjects: Channel Islands, data protection, personal data

28.5.2008

EN

Official Journal of the European Union

L 138/21

COMMISSION DECISION

of 8 May 2008

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

(notified under document number C(2008) 1746)

(Text with EEA relevance)

(2008/393/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(3)

Having regard to the Treaty
Community,

establishing the European

regard to Directive 95/46/EC of

Having
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,

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

(4)

(5)

Whereas:

level of data
Pursuant
to Directive 95/46/EC the
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.

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
international
the
to
commitments.

Community's

present

The Bailiwick of Jersey 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 defense which are the respon-
the United Kingdom Government. The
sibility of
Bailiwick of
Jersey is therefore to be considered as a
third country within the meaning of Directive 95/46/EC.

(1)

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

(6) With effect from 1951 and 1987 respectively, the United
Kingdom's ratification of the European Convention on
Human Rights and the Council of Europe Convention
Individuals with regard to
on the Protection of
automatic processing of personal data (Convention No
108) were extended to the Bailiwick of Jersey.

(2)

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.

(7)

(1) OJ L 281, 23.11.1995, p. 31. Directive as amended by Regulation

(EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

(2) Opinion No 8/2007 on the level of protection of personal data in
Jersey, adopted on 9 October 2007, available at http://ec.europa.eu/
justice_home/fsj/privacy/workinggroup/wpdocs/2007_en.htm

set out

As regards the Bailiwick of Jersey, the legal standards on
the protection of personal data largely based on the
in Directive 95/46/EC have been
standards
provided for in the Data Protection (Jersey) Law 1987,
which entered into force on 11 November 1987 and two
ancillary laws, the Data Protection (Amendment) (Jersey)
Law 2005, and the Data Protection (Jersey) Law 2005
(Appointed Day) Act 2005.

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EN

Official Journal of the European Union

28.5.2008

(8)

(9)

Secondary legislation has also been adopted under the
authority of the Data Protection (Jersey) Law, in 2005,
laying down specific rules concerning issues such as
subject access, processing of sensitive data and notifi-
cation to the data protection authority (1).

The legal standards applicable in Jersey 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 independent super-
vision carried out by the authority, the Data Protection
Commissioner, who is invested with powers of investi-
gation and intervention.

(10)

Jersey should therefore be regarded as providing an
adequate
as
referred to in Directive 95/46/EC.

level of protection for personal data

(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.

(12)

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

HAS ADOPTED THIS DECISION:

protection for

of
Community.

personal

data

transferred

from the

Article 2

This Decision concerns the adequacy of protection provided in
Jersey 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.

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 Jersey
in order to protect individuals with regard to the processing of
their personal data in the following cases:

(a) where a competent Jersey authority has determined that the
the applicable standards of

in breach of

recipient
protection; or

is

the competent

(b) where there is a substantial likelihood that the standards of
protection are being infringed, there are reasonable grounds
Jersey authority is not
for believing that
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 Jersey with
notice and an opportunity to respond.

Article 1

For the purposes of Article 25(2) of Directive 95/46/EC, the
Bailiwick of Jersey is considered as providing an adequate level

The suspension shall cease as soon as the standards of
the

2.
protection are assured and the competent authority of
Member States concerned is notified thereof.

(Jersey) Regulations 2005,

(1) These are the Data Protection (Corporate Finance Exemption) (Jersey)
Regulations 2005, the Data Protection (Credit Reference Agency)
(Jersey) Regulations 2005,
the Data Protection (Fair Processing)
(Jersey) Regulations 2005, the Data Protection (International Coope-
ration) (Jersey) Regulations 2005, the Data Protection (Notification)
(Jersey) Regulations 2005, the Data Protection (Sensitive Personal
Data)
the Data Protection (Subject
Access Exemptions) (Jersey) Regulations 2005, the Data Protection
(Subject Access Miscellaneous) (Jersey) Regulations 2005, the Data
Protection (Subject Access Modification — (Education) (Jersey) Regu-
lations 2005, the Data Protection (Subject Access Modification —
the Data Protection (Subject
(Health)
Access Modification — (Social Work)
(Jersey) Regulations 2005,
and the Data Protection (Transfer in Substantial Public Interest)
(Jersey) Regulations 2005.

(Jersey) Regulations 2005,

Article 4

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

inform the Commission without

2.
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
Jersey fails to secure such compliance.

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Official Journal of the European Union

L 138/23

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 Jersey is not effectively fulfilling its role,
the
Commission shall inform the competent Jersey 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 Jersey 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 notifi-
cation.

Article 7

This Decision is addressed to the Member States.

Done at Brussels, 8 May 2008.

For the Commission

Jacques BARROT
Vice-President