(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 State's laws implementing other provisions of the Directive are complied with prior to the transfer.
(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 in respect of given conditions. The Working Party on Protection of Individuals with regard to the processing of Personal Data established under that Directive has 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 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.
(12) 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 Opinions on the level of protection provided by Swiss law which have been taken into account in the preparation of this Decision(4).
(13) The measures provided for in this Decision are in accordance with the opinion of the Committee established under Article 31 of Directive 95/46/EC,
HAS ADOPTED THIS DECISION:
For the purposes of Article 25(2) of Directive 95/46/EC, for all the activities falling within the scope of that Directive, Switzerland is considered as providing an adequate level of protection for personal data transferred from the Community.
This Decision concerns only the adequacy of protection provided in Switzerland 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 Switzerland 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 Switzerland is not effectively fulfilling its role, the Commission shall inform the competent Swiss authority and, if necessary, present draft measures in accordance with the procedure under Article 31 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 Swiss 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 Switzerland 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 established by Article 31 of Directive 95/46/EC.
For the Commission
Frederik Bolkestein
Member of the Commission
(1) OJ L 281, 23.11.1995, p. 31.
(2) Opinion 12/98, adopted by the Working Party on 24.7.1998: "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: http://europa. eu.int/comm/internal_market/en/media/dataprot/wpdocs/index.htm.
(3) Available on website: http://conventions.coe.int/treaty/EN/cadreintro.htm.
(4) Opinion 5/99 adopted by the Working Party on 7.6.1999 (DG MARKT 5054/99), available on the Europa website cited in footnote 2.
