SUSPENSION OF THE ADEQUACY DECISION

Where, on the basis of the regular and ad hoc checks or any other information available, the Commission concludes that the level of protection afforded by the Japanese legal order can no longer be regarded as essentially equivalent to that in the European Union, it should inform the competent Japanese authorities thereof and request that appropriate measures be taken within a specified, reasonable timeframe. This includes the rules applicable to both business operators and Japanese public authorities responsible for criminal law enforcement or national security. For example, such a procedure would be triggered in cases where onward transfers, including on the basis of decisions adopted by the PPC under Article 24 of the APPI recognising a third country as providing an equivalent level of protection to the one guaranteed in Japan, will no longer be carried out under safeguards ensuring the continuity of protection within the meaning of Article 44 of the GDPR.

If, after the specified time period, the competent Japanese authorities fail to demonstrate satisfactorily that this Decision continues to be based on an adequate level of protection, the Commission should, in application of Article 45(5) of Regulation (EU) 2016/679, initiate the procedure leading to the partial or complete suspension or repeal of this Decision. Alternatively, the Commission should initiate the procedure to amend this Decision, in particular by subjecting data transfers to additional conditions or by limiting the scope of the adequacy finding only to data transfers for which the continuity of protection within the meaning of Article 44 of the GDPR is ensured.

In particular, the Commission should initiate the procedure for suspension or repeal in case of indications that the Supplementary Rules contained in Annex I are not complied with by business operators receiving personal data under this Decision and/or are not effectively enforced, or that the Japanese authorities fail to comply with the representations, assurances and commitments contained in Annex II to this Decision.

The Commission should also consider initiating the procedure leading to the amendment, suspension or repeal of this Decision if, in the context of the Joint Review or otherwise, the competent Japanese authorities fail to provide the information or clarifications necessary for the assessment of the level of protection afforded to personal data transferred from the European Union to Japan or compliance with this Decision. In this respect, the Commission should take into account the extent to which the relevant information can be obtained from other sources.

On duly justified grounds of urgency, such as a risk of serious infringment of data subjects’ rights, the Commission should consider adopting a decision to suspend or repeal this Decision that should apply immediately, pursuant to Article 93(3) of Regulation (EU) 2016/679 in conjunction with Article 8 of Regulation (EU) No 182/2011 of the European Parliament and of the Council (153).