(3) Pursuant to Directive 95/46/EC the level of data 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. The Working Party on Protection of Individuals with regard to the processing of Personal Data, established under Article 29 of Directive 95/46/EC, issued guidance on the making of such assessments(2).
(4) 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 to the Community's present international commitments.
(7) The Argentine Constitution provides for a special judicial remedy for the protection of personal data, known as "habeas data". This is a subcategory of the procedure enshrined in the Constitution for the protection of constitutional rights and therefore makes the protection of personal data a fundamental right. According to Article 43.3 of the Constitution any person is entitled, under the "habeas data" rule, to know the content and purpose of all the data pertaining to him or her contained in public records or data banks, or in private ones whose purpose is to provide reports. According to that Article in case of falsehood of information or its use for discriminatory purposes, a person will be able to demand the deletion, correction, confidentiality or update of the data contained in the above records. The Article will not affect the secrecy of journalistic information sources. Argentine jurisprudence has recognised "habeas data" as a fundamental and directly applicable right.
(18) The Working Party on Protection of Individuals with regard to the processing of Personal Data established under Article 29 of Directive 95/46/EC has delivered an opinion on the level of protection of personal data in Argentina(3), which has been taken into account in the preparation of this Decision.
(19) The measures provided for in this Decision are in accordance with the opinion of the Committee established under Article 31(1) of Directive 95/46/EC,
For the purposes of Article 25(2) of Directive 95/46/EC, Argentina is regarded as providing an adequate level of protection for personal data transferred from the Community.
This Decision concerns only the adequacy of protection provided in Argentina 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.
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 Argentina in order to protect individuals with regard to the processing of their personal data in cases where:
4. If the information collected under paragraphs 1, 2 and 3 provides evidence that any body responsible for ensuring compliance with the standards of protection in Argentina is not effectively fulfilling its role, the Commission shall inform the competent Argentine 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.
1. This Decision may be amended at any time in the light of experience with its functioning or of changes in Argentine legislation, its implementation and interpretation. /n 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 Argentina 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.
2. The Commission shall, if necessary, present draft measures in accordance with the procedure referred to in Article 31(2) of Directive 95/46/EC.
For the Commission /n Frederik Bolkestein /n Member of the Commission /n (1) OJ L 281, 23.11.1995, p. 31. /n (2) Opinion 12/98, adopted by the Working Party on 24 July 1998: Transfers of personal data to third countries: applying Articles 25 and 26 of the EU Data Protection Directive (DG MARKT D/5025/98), available on Europa, the website hosted by the European Commission: /n http://europa.eu.int/comm/ internal_market/en/dataprot/wpdocs/ wpdocs_98.htm. /n (3) Opinion 4/2002 on the level of protection of personal data in Argentina - WP 63 of 3 October 2002 available at /n http://europa.eu.int/comm/ internal_market/en/dataprot/wpdocs/ index.htm.