(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.
(10) 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 in this Decision the exceptional circumstances in which the suspension of specific data flows may be justified, notwithstanding the finding of adequate protection.
This Decision concerns only the adequacy of protection provided in Canada by the Canadian Act 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 Canada whose activities fall under the scope of the Canadian Act in order to protect individuals with regard to the processing of their personal data in cases where:
(b) there is a substantial likelihood that the standards of protection are being infringed; there are reasonable grounds for believing that the competent Canadian authority is not taking or will not take adequate and timely steps to settle the case at issue; the continuing transfer would create an imminent risk of grave harm to data subjects and the competent authorities in the Member State have made reasonable efforts in the circumstances to provide the party responsible for processing established in Canada with notice and an opportunity to respond.
/n
The suspension shall cease as soon as the standards of protection are assured and the competent authority concerned in the Community is notified thereof.
2. Member States shall inform the Commission without delay when measures are adopted on the basis of paragraph 1.
3. The Member States and the Commission shall also inform each other of cases where the action of bodies responsible for ensuring compliance with the standards of protection in Canada fails to secure such compliance.
1. This Decision may be amended at any time in the light of experience with its functioning or of changes in Canadian legislation, including measures recognising that a Canadian province has substantially similar legislation. The Commission shall evaluate the functioning of this Decision on the basis of available information, three years after its notification to the Member States 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 Canada 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.
Member States shall take all the measures necessary to comply with this Decision at the latest at the end of a period of 90 days from the date of its notification to the Member States.
This Decision is addressed to the Member States.
/n
Done at Brussels, 20 December 2001.
