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.