Regulation (EU) 2016/679 sets out the rules for the transfer of personal data from controllers or processors in the European Union to third countries and international organisations to the extent that such transfers fall within its scope. The rules on international transfers of personal data are laid down in Chapter V of that Regulation, more specifically in Articles 44 to 50. The flow of personal data to and from countries outside the European Union is necessary for the expansion of international cooperation and international trade, while guaranteeing that the level of protection afforded to personal data in the European Union is not undermined.

Pursuant to Article 45(3) of Regulation (EU) 2016/679, the Commission may decide, by means of an implementing act, that a third country, a territory or one or more specified sectors within a third country or an international organisation ensure an adequate level of protection. Under this condition, transfers of personal data to that third country, territory, sector or international organisation can take place without the need to obtain any further authorisation, as provided for in Article 45(1) and recital 103 of the Regulation.

As specified in Article 45(2) of Regulation (EU) 2016/679, the adoption of an adequacy decision has to be based on a comprehensive analysis of the third country's legal order, with respect to both the rules applicable to the data importers and the limitations and safeguards as regards access to personal data by public authorities. The assessment has to determine whether the third country in question guarantees a level of protection "essentially equivalent" to that ensured within the European Union (recital 104 of Regulation (EU) 2016/679). As clarified by the Court of Justice of the European Union, this does not require an identical level of protection (2). In particular, the means to which the third country in question has recourse may differ from the ones employed in the European Union, as long as they prove, in practice, effective for ensuring an adequate level of protection (3). The adequacy standard therefore does not require a point-to-point replication of Union rules. Rather, the test lies in whether, through the substance of privacy rights and their effective implementation, supervision and enforcement, the foreign system as a whole delivers the required level of protection (4).

The Commission has carefully analysed Japanese law and practice. Based on the findings developed in recitals 6 to 175, the Commission concludes that Japan ensures an adequate level of protection for personal data transferred to organisations falling within the scope of application of the Act on the Protection of Personal Information (5) and subject to the additional conditions referred to in this Decision. These conditions are laid down in the Supplementary Rules (Annex I) adopted by the Personal Information Protection Commission (PPC) (6) and the official representations, assurances and commitments by the Japanese government to the European Commission (Annex II).

On the basis of Article 6 of the APPI and that Cabinet Decision, the PPC on 15 June 2018 adopted "Supplementary Rules under the Act on the Protection of Personal Information for the Handling of Personal Data Transferred from the EU based on an Adequacy Decision" (the "Supplementary Rules") with a view to enhance the protection of personal information transferred from the European Union to Japan based on the present adequacy decision. Those Supplementary Rules are legally binding on Japanese business operators and enforceable, both by the PPC and by courts, in the same way as the provisions of the APPI that the Rules supplement with stricter and/or more detailed rules (12). As Japanese business operators receiving and/or further processing personal data from the European Union will be under a legal obligation to comply with the Supplementary Rules, they will need to ensure (e.g. by technical ("tagging") or organisational means (storing in a dedicated database)) that they can identify such personal data throughout their "life cycle" (13). In the following sections, the content of each Supplementary Rule is analysed as part of the assessment of the articles of the APPI it complements.

The scope of application of the APPI is determined by the defined concepts of Personal Information, Personal Data and Personal Information Handling Business Operator. At the same time, the APPI provides for some important exemptions from its scope, most importantly for Anonymously Processed Personal Data and for specific types of processing by certain operators. While the APPI does not use the term "processing", it relies on the equivalent concept of "handling" which, according to the information received from the PPC, covers "any act on personal data" including the acquisition, input, accumulation, organisation, storage, editing/processing, renewal, erasure, output, utilization, or provision of personal information.

First of all, as regards its material scope, the APPI distinguishes personal information from personal data, with only certain of the provisions of the Act being applicable to the former category. According to Article 2(1) of the APPI, the concept of "personal information" includes any information relating to a living individual which enables the identification of that individual. The definition distinguishes two categories of personal information: (i) individual identification codes; and (ii) other personal information whereby a specific individual can be identified. The latter category also includes information which by itself does not enable identification but, when "readily collated" with other information, allows the identification of a specific individual. According to the PPC Guidelines (16), whether information can be considered as "readily collated" shall be judged on a case by case basis, taking into consideration the actual situation ("condition") of the business operator. This will be assumed if such collation is (or can be) performed by an average ("normal") business operator using the means available to that operator. For instance, information is not "readily collated" with other information if a business operator needs to make unusual efforts or commit illegal acts to obtain the information to be collated from one or more other business operators.

Only certain forms of personal information fall within the notion of "personal data" under the APPI. In fact, "personal data" is defined as "personal information constituting a personal information database", i.e. a "collective body of information" comprising personal information "systematically organized so as to be able to search for particular personal information using a computer" (17) or "prescribed by cabinet order as having been systematically organized so as to be able to easily search for particular personal information" but "excluding those prescribed by cabinet order as having little possibility of harming an individual's rights and interests considering their utilization method" (18).

This exception is further specified in Article 3(1) of the Cabinet Order, according to which the three following cumulative conditions must be fulfilled: (i) the collective body of information must have been "issued for the purpose of being sold to a large number of unspecified persons and the issuance of which has not been conducted in violation of the provisions of a law or order based thereon"; (ii) must be capable of being "purchased at any time by a large number of unspecified persons" and (iii) the personal data contained therein must be "provided for their original purpose without adding other information relating to a living individual". According to the explanations received from the PPC, this narrow exception was introduced with the aim of excluding telephone books or similar types of directories.

For data collected in Japan, this distinction between "personal information" and "personal data" is relevant because such information may not always be part of a "personal information database" (for example, a single data set collected and processed manually) and therefore those provisions of the APPI that only relate to personal data will not apply (19).

By contrast, this distinction will not be relevant for personal data imported from the European Union to Japan on the basis of an adequacy decision. As such data will typically be transferred by electronic means (given that in the digital era this is the usual way of exchanging data, especially over a large distance as between the EU and Japan), and hence become part of the data importer's electronic filing system, such EU data will fall into the category of "personal data" under the APPI. In the exceptional case that personal data would be transferred from the EU by other means (e.g. in paper form), it will still be covered by the APPI if following the transfer it becomes part of a "collective body of information" systematically organised so as to allow easy search for specific information (Article 2(4)(ii) APPI). According to Article 3(2) of the Cabinet Order, this will be the case where the information is arranged "according to a certain rule" and the database includes tools such as for instance a table of contents or index to facilitate the search. This corresponds to the definition of a "filing system" within the meaning of Article 2(1) of the GDPR.

Certain provisions of the APPI, notably Articles 27 to 30 relating to individual rights, apply only to a specific category of personal data, namely "retained personal data". Those are defined under Article 2(7) of the APPI as personal data other than those which are either (i) "prescribed by cabinet order as likely to harm the public or other interests if their presence or absence is made known"; or (ii) "set to be deleted within a period of no longer than one year that is prescribed by cabinet order".

The second category has been further specified in Article 5 of the Cabinet Order. Read in conjunction with Article 2(7) of the APPI, it exempts from the scope of the notion of retained personal data, and thus from the individual rights under the APPI, those personal data that are "set to be deleted" within a period of six months. The PPC has explained that this exemption aims at incentivising business operators to retain and process data for the shortest period possible. However, this would mean that EU data subjects would not be able to benefit from important rights for no other reason than the duration of the retention of their data by the concerned business operator.

In order to address this situation, Supplementary Rule (2) requires that personal data transferred from the European Union "be handled as retained personal data within the meaning of Article 2, paragraph 7 of the Act, irrespective of the period within which it is set to be deleted". Hence, the retention period will have no bearing on the rights afforded to EU data subjects.

Requirements applicable to anonymously processed personal information, as defined in Article 2(9) of the APPI, are stipulated in Section 2 of Chapter 4 of the Act ("Duties of an Anonymously Processed Information Handling Business Operator"). Conversely, such information is not governed by the provisions of Section 1 of Chapter IV of the APPI which includes the articles stipulating the data protection safeguards and rights applying to the processing of personal data under that Act. Consequently, while "anonymously processed personal information" is not subject to the "standard" data protection rules (those specified in Section 1 of Chapter IV and in Article 42 of the APPI), they do fall within the scope of application of the APPI, notably Articles 36 to 39.

Given that "anonymously processed personal information", as defined by the APPI, includes data for which re-identification of the individual is still possible, this could mean that personal data transferred from the European Union might lose part of the available protections through a process that, under Regulation (EU) 2016/679, would be considered a form of "pseudonymisation" rather than "anonymisation" (thus not changing its nature as personal data).

To address that situation, the Supplementary Rules provide for additional requirements applicable only to personal data transferred from the European Union under this Decision. According to Rule (5) of the Supplementary Rules, such personal information shall only be considered "anonymously processed personal information" within the meaning of the APPI "if the personal information handling business operator takes measures that make the de-identification of the individual irreversible for anyone, including by deleting processing method etc. related information". The latter has been specified in the Supplementary Rules as information relating to descriptions and individual identification codes which were deleted from personal information used to produce "anonymously processed personal information", as well as information relating to a processing method applied while deleting these descriptions and individual identification codes. In other terms, the Supplementary Rules require the business operator producing "anonymously processed personal information" to destroy the "key" permitting re-identification of the data. This means that personal data originating from the European Union will fall under the APPI provisions regarding "anonymously processed personal information" only in cases where they would likewise be considered anonymous information under Regulation (EU) 2016/679 (22).

Under the APPI, no specific distinction is drawn between the obligations imposed on controllers and processors. The absence of this distinction does not affect the level of protection because all PIHBOs are subject to all provisions of the Act. A PIHBO that entrusts the handling of personal data to a trustee (the equivalent of a processor under the GDPR) remains subject to the obligations under the APPI and Supplementary Rules with regard to the data it has entrusted. Additionally, under Article 22 of the APPI, it is bound to "exercise necessary and appropriate supervision" over the trustee. In turn, as the PPC has confirmed, the trustee is itself bound by all the obligations in the APPI and the Supplementary Rules.

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.

Personal data should be processed for a specific purpose and subsequently used only insofar as this is not incompatible with the purpose of processing. This data protection principle is guaranteed under Articles 15 and 16 of 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 additional protection referred to in recital 43 is all the more relevant as it is through the purpose limitation principle that the Japanese system also ensures that personal data is processed lawfully and fairly.

As regards transfers from the European Union, personal data will necessarily have been first collected and processed in the EU in compliance with Regulation (EU) 2016/679. This will always involve, on the one hand, collection and processing, including for the transfer from the European Union to Japan, on the basis of one of the legal grounds listed in Article 6(1) of the Regulation and, on the other hand, collection for a specific, explicit and legitimate purpose as well as the prohibition of further processing, including by way of a transfer, in a manner that is incompatible with such purpose as laid down in Articles 5(1)(b) and 6(4) of the Regulation.

Following the transfer, according to Supplementary Rule (3), the PIHBO that will receive the data will have to "confirm" the specific purpose(s) underlying the transfer (i.e. the purpose specified pursuant to Regulation (EU) 2016/679) and further process that data in line with such purpose(s) (34). This means not only that the initial acquirer of such personal data in Japan but also any future recipient of the data (including a trustee) is bound by the purpose(s) specified under the Regulation.

As concerns the obligation to keep data accurate and up to date, Article 19 of the APPI requires the PIHBO to "strive to keep personal data accurate and up-to-date within the scope necessary to achieve a utilisation purpose". That provision should be read together with Article 16(1) of the APPI: according to the explanations received from the PPC, if a PIHBO fails to meet the prescribed standards of accuracy, the processing of the personal information will not be considered as achieving the utilisation purpose and hence, its handling will become unlawful under Article 16(1).

Data should in principle be kept for no longer than is necessary for the purposes for which the personal data is processed.

According to Article 19 of the APPI, PIHBOs are required to "strive […] to delete the personal data without delay when such utilisation has become unnecessary". That provision needs to be read in conjunction with Article 16(1) of the APPI prohibiting the handling of personal information beyond "the necessary scope to achieve a utilisation purpose". Once the utilisation purpose has been achieved, processing of personal information cannot be considered necessary anymore and, hence, cannot continue (unless the PIHBO obtains the data subject's consent to do so).

Personal data should be processed in a manner that ensures their security, including protection against unauthorized or unlawful processing and against accidental loss, destruction or damage. To that end, business operators should take appropriate technical or organisational measures to protect personal data from possible threats. These measures should be assessed taking into consideration the state of the art and related costs.

This principle is implemented in Japanese law by Article 20 of the APPI, providing that a PIHBO "shall take necessary and appropriate action for the security control of personal data including preventing the leakage, loss or damage of its handled personal data." The PPC Guidelines explain the measures to be taken, including the methods for the establishment of basic policies, data handling rules and various "control actions" (regarding organisational safety as well as human, physical and technological security) (35). In addition, the PPC Guidelines and a dedicated Notice (Appendix 8 on "Contents of the safety management measures that have to be taken") published by the PPC provide more details on measures concerning security incidents involving, for example, the leakage of personal information, as part of the security management measures to be taken by PIHBOs (36).

Data subjects should be informed of the main features of the processing of their personal data.

As regards "retained personal data", Article 27 APPI provides that the PIHBO shall inform the data subject about its identity (contact details), the utilisation purpose and the procedures for responding to a request concerning the data subject's individual rights under Articles 28, 29 and 30 of the APPI.

As under the Supplementary Rules personal data transferred from the European Union will be considered "retained personal data" irrespective of their retention period (unless covered by exemptions), they will always be subject to the transparency requirements under both of the aforementioned provisions.

As mentioned in footnote 34 (recital 49), PIHBOs are required, under Article 26(1) of the APPI, to verify the identity of a third party providing personal data to them and the "circumstances" under which such data was acquired by the third party (in case of personal data covered by this Decision, according to the APPI and Supplementary Rule (3) those circumstances shall include the fact that the data originates from the European Union as well as the purpose of the original data transfer). Among others, that measure aims at ensuring the lawfulness of data processing throughout the chain of PIHBOs handling the personal data. Furthermore, under Article 26(3) of the APPI, PIHBOs are required to keep a record of the date of receipt and the (mandatory) information received from the third party pursuant to paragraph 1, as well as the name of the individual concerned (data subject), the categories of data processed and, to the extent relevant, the fact that the data subject has given consent for sharing his/her personal data. As specified in Article 18 of the PPC Rules, those records must be preserved for a period of at least one to three years, depending on the circumstances. In the exercise of its tasks, the PPC can require the submission of such records (39).

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.

A first protection is enshrined in Article 24 of the APPI which generally prohibits the transfer of personal data to a third party outside the territory of Japan without the prior consent of the individual concerned. Supplementary Rule (4) ensures that in the case of data transfers from the European Union such consent will be particularly well informed as it requires that the individual concerned shall be "provided information on the circumstances surrounding the transfer necessary for the principal to make a decision on his/her consent". On that basis, the data subject shall be informed of the fact that the data will be transferred abroad (outside the scope of application of the APPI) and of the specific country of destination. This will allow him/her to assess the risk for privacy involved with the transfer. Also, as can be inferred from Article 23 of the APPI (see recital 47), the information provided to the principal should cover the compulsory items under its paragraph 2, namely the categories of personal data provided to a third party and the method of disclosure.

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.

First, pursuant to Article 28(1) and (2) of the APPI, a data subject has a right to request from a PIHBO to "disclos[e] retained personal data that can identify him- or herself" and, upon receipt of such a request, the PIHBO "shall […] disclose retained personal data" to the data subject. Article 29 (right to correction) and 30 (right to utilisation cease) have the same structure as Article 28.

Second, pursuant to Article 29(1) and (2) of the APPI, a data subject has a right to request the correction, addition or deletion of his/her retained personal data in the case where the data is inaccurate. Upon receipt of such a request, the PIHBO "shall […] conduct a necessary investigation" and, based on the results of such an investigation, "make a correction etc. of the contents of the retained data".

Differently from EU law, the APPI and relevant sub-statutory rules do not contain legal provisions specifically addressing the possibility to oppose processing for direct marketing purposes. However, such processing will, under this Decision, take place in the context of a transfer of personal data that was previously collected in the European Union. Under Article 21(2) of Regulation (EU) 2016/679, the data subject shall always have the possibility to oppose a transfer of data for the purpose of processing for direct marketing. Moreover, as explained in recital 43, under Supplementary Rule (3), a PIHBO is required to process the data received under the Decision for the same purpose for which the data have been transferred from the European Union, unless the data subject consents to change the utilisation purpose.Hence, if the transfer has been made for any purpose other than direct marketing, a PIHBO in Japan will be barred from processing the data for the purpose of direct marketing without consent of the EU data subject.

As regards the conditions for making a request, Article 32 of the APPI (together with the Cabinet Order) allows the PIHBO to determine reasonable procedures, including in terms of the information needed to identify the retained personal data. However, according to paragraph 4 of this Article, PIHBOs must not impose an "excessive burden on a principal". In certain cases the PIHBOs may also impose fees as long as their amount stays "within the scope considered reasonable in consideration of actual costs" (Article 33 of the APPI).

Differently from EU law, the APPI and relevant sub-statutory rules do not contain general provisions addressing the issue of decisions affecting the data subject and based solely on the automated processing of personal data. However, the issue is addressed in certain sectoral rules applicable in Japan that are particularly relevant for this type of processing. This includes sectors in which companies most likely resort to the automated processing of personal data to take decisions affecting individuals (e.g. the financial sector). For example, the "Comprehensive Guidelines for Supervision over Major Banks", as revised in June 2017, require that the concerned individual be provided with specific explanations on the reasons for the rejection of a request to conclude a loan agreement. Those rules thus offer protections in the likely rather limited number of cases where automated decisions would be taken by the "importing" Japanese business operator itself (rather than the "exporting" EU data controller).

In any event, as regards personal data that has been collected in the European Union, any decision based on automated processing will typically be taken by the data controller in the Union (which has a direct relationship with the concerned data subject) and is thus subject to Regulation (EU) 2016/679 (56). This includes transfer scenarios where the processing is carried out by a foreign (e.g. Japanese) business operator acting as an agent (processor) on behalf of the EU controller (or as a sub-processor acting on behalf of the EU processor having received the data from an EU controller that collected it) which on this basis then takes the decision. Therefore, the absence of specific rules on automated decision making in the APPI is unlikely to affect the level of protection of the personal data transferred under this Decision.

Before or instead of seeking administrative or judicial redress, an individual may decide to submit a complaint about the processing of his/her personal data to the controller itself. Based on Article 35 of the APPI, PIHBOs shall endeavour to deal with such complaints "appropriately and promptly" and establish internal complaint-handling systems to achieve this objective. In addition, under Article 61(ii) of the APPI the PPC is responsible for the "necessary mediation on a lodged complaint and cooperation offered to a business operator who deals with the complaint", which in both cases includes complaints submitted by foreigners. In this regard, the Japanese legislator has also entrusted the central government with the task of taking "necessary action" to enable and facilitate the resolution of complaints by PIHBOs (Article 9), while local governments shall endeavour to ensure mediation in such cases (Article 13). In that respect, individuals may lodge a complaint with one of the more than 1 700 consumer centres established by local governments based on the Consumer Safety Act (61), in addition to the possibility of lodging a complaint with the National Consumer Affairs Centre of Japan. Such complaints may also be brought with respect to a violation of the APPI. Under Article 19 of the Basic Consumer Act (62), local governments shall endeavour to engage in mediation with respect to complaints and provide the parties with necessary expertise. Those dispute resolution mechanisms appear quite effective, with a resolution rate of 91,2 % concerning more than 75 000 complaint cases in 2015.

Violations of the provisions of the APPI by a PIHBO can give rise to civil actions as well as criminal proceedings and sanctions. First, if an individual considers that his/her rights under Articles 28, 29 and 30 of the APPI have been infringed, (s)he may seek injunctive relief by asking the court to order a PIHBO to satisfy his/her request under one of these provisions, i.e. to disclose retained personal data (Article 28), to rectify retained personal data that is incorrect (Article 29) or to cease unlawful processing or third party provision (Article 30). Such an action may be brought without the need to rely on Article 709 of the Civil Code (63) or otherwise on tort law (64). In particular, this means that the individual does not have to prove any harm.

Third, in addition to civil law (tort) remedies, a data subject may file a complaint with a public prosecutor or judicial police official with respect to APPI violations that can lead to criminal sanctions. Chapter VII of the APPI contains a number of penal provisions. The most important one (Article 84) relates to non-compliance by the PIHBO with PPC orders pursuant to Article 42(2) and (3). If a business operator fails to comply with an order issued by the PPC, the PPC Chair (as well as any other government official) (66) may forward the case to the public prosecutor or judicial police official and in that way trigger the opening of a criminal procedure. The penalty for the violation of a PPC order is imprisonment with labour for up to six months or a fine of up to 300 000 yen. Other provisions of the APPI providing for sanctions in case of APPI violations affecting the rights and interests of data subjects include Article 83 of the APPI (regarding the "providing or using by stealth" of a personal information database "for the purpose of seeking […] illegal profits") and Article 88(i) of the APPI (regarding the failure by a third party to correctly inform the PIHBO when the latter receives personal data in accordance with Article 26(1) of the APPI, in particular on the details of the third party's own, prior acquisition of such data). The applicable penalties for such violations of the APPI are, respectively, imprisonment with work for up to one year or a fine of up to 500 000 yen (in case of Article 83) or an administrative fine of up to 100 000 yen (in case of Article 88(i)). While the threat of a criminal sanction is already likely to have a strong deterrent effect on the business management that directs the PIHBO's processing operations as well as on the individuals handling the data, Article 87 of the APPI clarifies that when a representative, employee or other worker of a corporate body has committed a violation pursuant to Articles 83 to 85 of the APPI, "the actor shall be punished and a fine set forth in the respective Articles shall be imposed on the said corporate body". In this case, both the employee and the company can be imposed sanctions up to the full maximum amount.

The Commission has also assessed the limitations and safeguards, including the oversight and individual redress mechanisms available in Japanese law as regards the collection and subsequent use of personal data transferred to business operators in Japan by public authorities for public interest, in particular criminal law enforcement and national security purposes ("government access"). In this respect, the Japanese government has provided the Commission with official representations, assurances and commitments signed at the highest ministerial and agency level that are contained in Annex II to this Decision.

As an exercise of public authority, government access in Japan must be carried out in full respect of the law (legality principle). In this regard, the Constitution of Japan contains provisions limiting and framing the collection of personal data by public authorities. As already mentioned with respect to processing by business operators, basing itself on Article 13 of the Constitution which among others protects the right to liberty, the Supreme Court of Japan has recognised the right to privacy and data protection (72). One important aspect of that right is the freedom not to have one's personal information disclosed to a third party without permission (73). This implies a right to the effective protection of personal data against abuse and (in particular) illegal access. Additional protection is ensured by Article 35 of the Constitution on the right of all persons to be secure in their homes, papers and effects, which requires from public authorities to obtain a court warrant issued for "adequate cause" (74) in all cases of "searches and seizures". In its judgment of 15 March 2017 (GPS case), the Supreme Court has clarified that this warrant requirement applies whenever the government invades ("enters into") the private sphere in a way that suppresses the individual's will and thus by means of a "compulsory investigation". A judge may only issue such warrant based on a concrete suspicion of crimes, i.e. when provided with documentary evidence based on which the person concerned by the investigation can be considered as having committed a criminal offence (75). Consequently, Japanese authorities have no legal authority to collect personal information by compulsory means in situations where no violation of the law has yet occurred (76), for example in order to prevent a crime or other security threat (as is the case for investigations on grounds of national security).

Japanese law contains a number of limitations on the access and use of personal data for criminal law enforcement purposes as well as oversight and redress mechanisms that provide sufficient safeguards for that data to be effectively protected against unlawful interference and the risk of abuse.

Third, also within the executive branch the Prefectural Police is subject to independent oversight. That includes in particular the Prefectural Public Safety Commissions established at prefectural level to ensure democratic administration and political neutrality of the police (108). These commissions are composed of members appointed by the Prefectural Governor with the consent of the Prefectural Assembly (from among citizens with no public servant position in the police in the five preceding years) and have a secure term of office (in particular only dismissal for good cause) (109). According to the information received, they are not subject to instructions, and thus can be considered as fully independent (110). As regards the tasks and powers of the Prefectural Public Safety Commissions, pursuant to Article 38(3) in conjunction with Articles 2 and 36(2) of the Police Law they are responsible for "the protection of [the] rights and freedom of an individual". To this effect, they are empowered to “supervise” (111) all investigatory activities of the Prefectural Police, including the collection of personal data. Notably, the commissions "may direct the [P]refectural [P]olice in detail or in a specific individual case of inspection of police personnel's misconduct, if necessary" (112). When the Chief of the Prefectural Police (113) receives such a direction or by him-/herself becomes aware of a possible case of misconduct (including the violation of laws or other neglect of duties), (s)he has to promptly inspect the case and report the inspection result to the Prefectural Public Safety Commission (Article 56(3) of the Police Law). Where the latter considers this necessary, it may also designate one of its members to review the status of implementation. The process continues until the Prefectural Public Safety Commission is satisfied that the incident has been appropriately addressed.

Second, given that redress will naturally have to be sought abroad in a foreign system and in a foreign language, in order to facilitate redress for EU individuals whose personal data is transferred to business operators in Japan and then accessed by public authorities, the Japanese government has made use of its powers to create a specific mechanism, administered and supervised by PPC, for handling and resolving complaints in this field. That mechanism builds on the cooperation obligation imposed on Japanese public authorities under the APPI and the special role of the PPC with respect to international data transfers from third countries under Article 6 of the APPI and the Basic Policy (as established by the Japanese government through Cabinet Order). The details of this mechanism are set out in the official representations, assurances and commitments received from the Japanese government and attached to this Decision as Annex II. The mechanism is not subject to any standing requirement and is open to any individual, independently of whether (s)he is suspected or accused of a criminal offence.

Third, an individual who disagrees with a seizure decision (warrant) (118) concerning his/her personal data by a judge, or with the measures by the police or prosecution executing such a decision, may file a request for that decision or such measures to be rescinded or altered (Articles 429(1), 430(1), (2) of the CCP, Article 26 of the Wiretapping Act) (119). In the case where the reviewing court considers that either the warrant itself or its execution ("procedure for seizure") is illegal, it will grant the request and order the seized articles to be returned (120).

In addition to monetary compensation, individuals may under certain conditions also obtain injunctive relief (e.g. the deletion of personal data collected by public authorities) based on their privacy rights under Article 13 of the Constitution (122).

As is the case for investigations in the area of criminal law enforcement, also in the area of national security individuals may obtain individual redress by directly contacting the PPC. This will trigger the specific dispute resolution procedure that the Japanese government has created for EU individuals whose personal data is transferred under this Decision (see detailed explanations in recitals 141 to 144, 149).

The Commission considers that the APPI as complemented by the Supplementary Rules contained in Annex I, together with the official representations, assurances and commitments contained in Annex II, ensure a level of protection for personal data transferred from the European Union that is essentially equivalent to the one guaranteed by Regulation (EU) 2016/679.

Moreover, the Commission considers that, taken as a whole, the oversight mechanisms and redress avenues in Japanese law enable infringements by recipient PIHBOs to be identified and punished in practice and offer legal remedies to the data subject to obtain access to personal data relating to him/her and, eventually, the rectification or erasure of such data.

Finally, on the basis of the available information about the Japanese legal order, including the representations, assurances and commitments from the Japanese government contained in Annex II, the Commission considers that any interference with the fundamental rights of the individuals whose personal data are transferred from the European Union to Japan by Japanese public authorities for public interest purposes, in particular criminal law enforcement and national security purposes, will be limited to what is strictly necessary to achieve the legitimate objective in question, and that effective legal protection against such interference exists.

Therefore, in the light of the findings of this Decision, the Commission considers that Japan ensures an adequate level of protection for personal data transferred from the European Union to PIHBOs in Japan that are subject to the APPI, except in those cases where the recipient falls within one of the categories listed in Article 76(1) APPI and all or part of the purposes of processing correspond(s) to one of the purposes prescribed in that provision.

Therefore, the Commission should on an on-going basis monitor the situation as regards the legal framework and actual practice for the processing of personal data as assessed in this Decision, including compliance by the Japanese authorities with the representations, assurances and commitments contained in Annex II. To facilitate this process, the Japanese authorities are expected to inform the Commission of material developments relevant to this Decision, both as regards the processing of personal data by business operators and the limitations and safeguards applicable to access to personal data by public authorities. This should include any 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.

Moreover, in order to allow the Commission to effectively carry out its monitoring function, the Member States should inform the Commission about any relevant action undertaken by the national data protection authorities ("DPAs"), in particular regarding queries or complaints by EU data subjects concerning the transfer of personal data from the European Union to business operators in Japan. The Commission should also be informed about any indications that the actions of Japanese public authorities responsible for the prevention, investigation, detection or prosecution of criminal offences, or for national security, including any oversight bodies, do not ensure the required level of protection.

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.

The European Parliament has adopted a resolution on a digital trade strategy that calls on the Commission to prioritise and speed up the adoption of adequacy decisions with important trading partners under the conditions laid down in Regulation (EU) 2016/679, as an important mechanism to safeguard the transfer of personal data from the European Union (155). The European Parliament has also adopted a resolution on the adequacy of the protection of personal data afforded by Japan (156).