Can Data Exporters and Data Importers Continue Using the Previous SCCs?

ANSWER

Data transfer agreements for transfers to third countries concluded after 27 September 2021 must be based on the new SCCs.

Parties that entered into a data transfer agreement based on the previous SCCs before 27 September 2021 could benefit from a transitional period until 27 December 2022 to implement the new SCCs (i.e., replace the previous SCCs with the new SCCs, including the relevant annexes).

If the processing operations governed by an agreement based on the previous SCCs changed before 27 December 2022, the parties were required to switch to the new SCCs before that date.

Example:

A data exporter and a data importer entered into a service agreement before 27 September 2021 based on the previous SCCs. In February 2022, the pricing terms in the service agreement were amended. Since this pricing change does not affect the circumstances of the transfer of personal data to a third country, the amendment does not require the parties to switch immediately to the new SCCs (although the new SCCs still had to be implemented by 27 December 2022).

Example:

A data exporter and a data importer entered into a service agreement before 27 September 2021 based on the previous SCCs. In February 2022, the parties agreed that additional categories of personal data would be transferred. This change affects the circumstances of the processing of personal data, and therefore the parties must switch to the new SCCs.

After 27 December 2022, transfers can no longer be based on the previous SCCs.