In order to ensure an adequate level of protection of personal data transferred from the European Union to business operators in Japan, only processing of personal information falling within the scope of Chapter IV of the APPI – i.e. by a PIHBO to the extent the processing situation does not correspond to one of the sectoral exclusions – should be covered by this Decision. Its scope should therefore be aligned to that of the APPI. According to the information received from the PPC, where a PIHBO covered by this Decision subsequently modifies the utilisation purpose (to the extent this is permissible) and would then be covered by one of the sectoral exclusions in Article 76 of the APPI, this would be considered as an international transfer (given that, in such cases, the processing of the personal information would no longer be covered by Chapter IV of the APPI and thus fall outside its scope of application). The same would apply in case a PIHBO provides personal information to an entity covered by Article 76 of the APPI for use for one of the processing purposes indicated in that provision. As regards personal data transferred from the European Union, this would therefore constitute an onward transfer subject to the relevant safeguards (notably those specified in Article 24 of the APPI and Supplementary Rule (4)). Where the PIHBO relies on the data subject's consent (25), it would have to provide him/her with all the necessary information, including that the personal information would no longer be protected by the APPI.

When it comes to personal information acquired from another business operator, the PIHBO is, in principle, free to set a new utilisation purpose (28). In order to ensure that, in case of a transfer from the European Union, such a recipient is bound by the purpose for which the data was transferred, Supplementary Rule (3) requires that, in cases "where a [PIHBO] receives personal data from the EU based on an adequacy decision" or such an operator "receives from another [PIHBO] personal data previously transferred from the EU based on an adequacy decision" (onward sharing), the recipient has to "specify the purpose of utilising the said personal data within the scope of the utilisation purpose for which the data was originally or subsequently received". In other words, the rule ensures that in a transfer context the purpose specified pursuant to Regulation (EU) 2016/679 continues to determine the processing, and that a change of that purpose at any stage of the processing chain in Japan would require the consent of the EU data subject. While obtaining this consent requires the PIHBO to contact the data subject, where this is not possible the consequence is simply that the original purpose has to be maintained.

The level of protection afforded to personal data transferred from the European Union to business operators in Japan must not be undermined by the further transfer of such data to recipients in a third country outside Japan. Such "onward transfers", which from the perspective of the Japanese business operator constitute international transfers from Japan, should be permitted only where the further recipient outside Japan is itself subject to rules ensuring a similar level of protection as guaranteed within the Japanese legal order.

To ensure continuity of protection in case of personal data transferred from the European Union to Japan under this Decision, Supplementary Rule (4) enhances the level of protection for onward transfers of such data by the PIHBO to a third country recipient. It does so by limiting and framing the bases for international transfers that can be used by the PIHBO as an alternative to consent. More specifically, and without prejudice to the derogations set forth in Article 23(1) of the APPI, personal data transferred under this Decision may be subject to (onward) transfers without consent only in two cases: (i) where the data is sent to a third country which has been recognised by the PPC under Article 24 of the APPI as providing an equivalent level of protection to the one guaranteed in Japan (47); or (ii) where the PIHBO and the third party recipient have together implemented measures providing a level of protection equivalent to the APPI, read together with the Supplementary Rules, by means of a contract, other forms of binding agreements or binding arrangements within a corporate group. The second category corresponds to the instruments used under Regulation (EU) 2016/679 to ensure appropriate safeguards (in particular, contractual clauses and binding corporate rules). In addition, as confirmed by the PPC, even in those cases, the transfer remains subject to the general rules applicable to any provision of personal data to a third party under the APPI (i.e. the requirement to obtain consent under Article 23(1) or, alternatively, the information requirement with a possibility to opt out under Article 23(2) of the APPI). In case the data subject cannot be reached with a request for consent or in order to provide the required advance information under Article 23(2) of the APPI, the transfer may not take place.

Finally, a further safeguard in case of (onward) transfers follows from Articles 20 and 22 of the APPI. According to these provisions, where a third country operator (data importer) acts on behalf of the PIHBO (data exporter), that is as a (sub-) processor, the latter has to ensure supervision over the former as regards security of data processing.

To this end, this Decision should be subject to a first review within two years after its entry into force. Following that first review, and depending on its outcome, the Commission will decide in close consultation with the Committee established under Article 93(1) of the GDPR whether the two-year-cycle should be maintained. In any case, the subsequent reviews should take place at least every four years (151). The review should cover all aspects of the functioning of this Decision, and in particular the application of the Supplementary Rules (with special attention paid to protections afforded in case of onward transfers), the application of the rules on consent, including in case of withdrawal, the effectiveness of the exercise of individual rights, as well as the limitations and safeguards with respect to government access, including the redress mechanism as set out in Annex II to this Decision. It should also cover the effectiveness of oversight and enforcement, as regards the rules applicable to both PIHBOs and in the area of criminal law enforcement and national security.

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.