(1) Pursuant to Directive 95/46/EC Member States are required to provide that the transfer of personal data to a third country may take place only if the third country in question ensures an adequate level of protection and if the Member States' laws implementing other provisions of the Directive are complied with prior to the transfer.

(2) The Commission may find that a third country ensures an adequate level of protection. In that case, personal data may be transferred from the Member States without additional guarantees being necessary.

(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).

(5) As regards Argentina, the legal standards on the protection of personal data have been provided for in general and sector-specific rules. Both of them have binding legal effect.

(6) General rules are laid down in the Constitution, the Personal Data Protection Act No 25.326 and the Regulation approved by Decree No 1558/2001 (hereinafter "Argentine Law").

(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.

(8) The Personal Data Protection Act No 25.326 of 4 October 2000 (hereinafter "the Act") develops and widens the Constitutional provisions. It contains provisions relating to general data protection principles, the rights of data subjects, the obligations of data controllers and data users, the supervisory authority or controlling body, sanctions, and rules of procedure in seeking "habeas data" as a judicial remedy.

(10) Argentine Law covers the protection of personal data recorded in data files, registers, data banks or other technical means, which are public; and the protection of personal data recorded in data files, registers, data banks or other technical means which are private, whose purpose is to provide reports. This includes those which go beyond an exclusively personal use, and those which are intended for the assignment or transfer of personal data, irrespective of whether the circulation of the data or information produced is performed for payment or free of charge.

(14) Argentine Law covers all the basic principles necessary for an adequate level of protection for natural persons, even if exceptions and limitations are also provided in order to safeguard important public interests. The application of these standards is guaranteed by a special, simplified and quick judicial remedy for the protection of personal data, known as "habeas data", along with the general judicial remedies. The Act provides for the establishment of a data protection controlling body charged with taking all actions necessary for compliance with the objectives and provisions of the Act and endowed with powers of investigation and intervention. Pursuant to the Regulation, the National Directorate for the Protection of Personal Data was established as the controlling body. Argentine Law provides for effective dissuasive sanctions, of both an administrative and a criminal nature. Furthermore, the provisions of Argentine law regarding civil liability (both contractual and extra-contractual) apply in the event of unlawful processing which is prejudicial to the persons concerned.

(16) Argentina should therefore be regarded as providing an adequate level of protection for personal data as referred to in Directive 95/46/EC.

(17) In the interest of transparency and in order to safeguard the ability of the competent authorities in the Member States to ensure the protection of individuals as regards the processing of their personal data, it is necessary to specify the exceptional circumstances in which the suspension of specific data flows may be justified, notwithstanding the finding of adequate protection.

(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.

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:

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.