On June 1, 2021, several German supervisory authorities (“SAs”) announced the launch of a “nationwide investigation” into German companies transferring personal data outside of the European Economic Area.  Currently, there is no official list of all the SAs participating in the investigation, but at least 8 of Germany’s 16 regional SAs have announced their intention to take part in it, including: Baden Wuerttemberg, Bavaria, Berlin, Brandenburg, Hamburg, Lower Saxony, Rhineland-Palatinate, and Saarland.

The German SAs conducting the investigation have announced that they will ask companies to complete one or more questionnaires in relation to their international data transfers.  According to the Hamburg SA, there are five questionnaires in total (see here, in German).  Four of them raise questions about the transfer of personal data to common IT service providers, namely: (1) email providers; (2) web-hosting services; (3) third parties assisting with web tracking; and (4) service providers managing applicant data.  The fifth questionnaire relates to intra-group transfers of customer and employee data.  Each of the SAs will decide which questionnaires to roll out and may adapt them as deemed appropriate.

The questionnaires ask companies to provide the following information:

  • the name and location of the data exporter and data recipients;
  • the length of time for which the company has been transferring data to these recipients;
  • whether each data recipient is a controller or a processor;
  • the location of the servers used to transfer the data;
  • which personal data or categories of personal data are included in the data transfers;
  • the legal basis the controller relies on to process (including transfer) the data;
  • the transfer mechanism the company relies on to transfer the data;
  • a copy of the sections of the record of processing activities that relate to the relevant data transfers; and
  • for companies that rely on standard contractual clauses, the questionnaires further inquire:
    • whether they conducted an assessment of the third country’s legal system;
    • whether they or their data recipients are subject to Section 702 of the US Foreign Intelligence Surveillance Act;
    • on what basis they concluded that the data recipient is able to fulfill its obligations under the standard contractual clauses; and
    • what supplementary measures (if any) were (or will be) implemented.

The Baden Wuerttemberg SA stated that the purpose of these questionnaires is to better understand how companies in Germany have applied the Schrems II judgment of the Court of Justice of the European Union (“CJEU”) (see our blog post about the decision here).  Indeed, German SAs seem to compelled to enforce the judgment, ostensibly in response to the CJEU’s statement in that decision that “supervisory authorities’ primary responsibility is to monitor the application of the GDPR and to ensure its enforcement[, particularly]… where personal data is transferred to a third country…” (para. 108).

That said, German SAs also seem cognizant of the challenges of enforcement in this vast space, where global transfers of personal data have become commonplace and are widespread.  The Hamburg SA, for example, states that “in light of the large amount of companies affected [by the Schrems II judgment], it will be very difficult to achieve uniform enforcement”, but adds that “turning a blind eye” is not a solution either, and companies should understand that there are services available on the market that do not necessitate the illegal transfer of personal data.

In light of this development, companies in Germany should prepare for the possibility of being contacted by their competent SA and asked to complete one or more of these transfer questionnaires.  The German SAs participating in this investigation have indicated that they are open to dialoguing with companies about what measures are necessary to conform with the GDPR’s transfer requirements.  They also stated that, in most cases, they expect the suspension of a data transfer to be the most severe enforcement measure they would take against a data exporter found to be non-compliant, but they may resort to other enforcement measures (e.g., fines) if dialogue with anexporter is not possible or breaks down.

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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.

Photo of Sophie Herold Sophie Herold

Sophie Herold is an associate in Covington’s Frankfurt office and a member of our Food, Drug and Device Practice and our Data Privacy and Cybersecurity Practice. She advises clients on a broad range of regulatory and compliance matters.

Sophie advises clients on all…

Sophie Herold is an associate in Covington’s Frankfurt office and a member of our Food, Drug and Device Practice and our Data Privacy and Cybersecurity Practice. She advises clients on a broad range of regulatory and compliance matters.

Sophie advises clients on all aspects of pharmaceutical and medical device regulation, clinical research, advertising, data protection and other regulatory issues over the entire product lifecycle. She also counsels clients on legal, contractual and privacy issues that affect digital health products and services. Besides, Sophie assists clients with data privacy and technology related matters, including medical apps, automated vehicles, IoT and AI-based devices.

Sophie’s practice includes advisory work. She also represents clients before authorities and in court.

Photo of Lars Lensdorf Lars Lensdorf

Lars Lensdorf is a partner in the Frankfurt office. He focuses on IT law, outsourcing, digitalization/ industry 4.0, IT related bank regulatory matters and data protection. Dr. Lensdorf’s practice covers all types of IT and outsourcing agreements, all matters of digitalization and industry…

Lars Lensdorf is a partner in the Frankfurt office. He focuses on IT law, outsourcing, digitalization/ industry 4.0, IT related bank regulatory matters and data protection. Dr. Lensdorf’s practice covers all types of IT and outsourcing agreements, all matters of digitalization and industry 4.0, including online procurement platforms, IT-compliance matters (including cybersecurity) as well as data protection.

Furthermore, he is also focused on interfaces to other practice areas to the extent that IT related matters are affected, e. g. regulatory requirements for banking and financial services as well as public procurement law. A significant part of Dr. Lensdorf’s practice is currently advice in connection with the implementation of the GDPR (data protection) in Europe.