- 30.06.2019 -

Why should companies invest in Binding Corporate Rules?

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1   Introduction


Article 47 of the EU General Data Protection Regulation ("GDPR") expressly recognizes Binding Corporate Rules ("BCR") as one of the means for the international transfer of personal data, both for controllers (covering personal data they control) and for processors (covering personal data they process on behalf of others based on a processing agreement). Before the GDPR came into force, BCR were recognized and approved by the current practice of the data protection authorities and the guidelines of the Article 29 Working Party (“Working Party”). Other countries outside of the EU, such as Switzerland, recognize the concept of BCR as well. 


What is the practical significance of BCR for companies and why should companies invest in BCR? This article shall explore what BCR under the GDPR are, what needs to be considered when applying and implementing BCR and their benefits. 


2   What are Binding Corporate Rules?


The GDPR defines the term “Binding Corporate Rules” in Art. 4 para. 20 as “personal data protection policies which are adhered to by a controller or processor established on the territory of a Member State for transfers or a set of transfers of personal data to a controller or processor in one or more third countries within a group of undertakings, or group of enterprises engaged in a joint economic activity”. 


BCR are therefore one of the appropriate safeguards for the transfer of personal data within a group of undertakings, or group of enterprises engaged in a joint economic activity (“Group”) from the EEA to countries which do not provide an adequate level of data protection. In practice, BCR are a set of internal rules, standards and processes, such as codes of conduct, that regulate internal data management practices in a binding and consistent manner throughout the Group with the primary objective to facilitate the free movement of personal data within that Group while ensuring an effective level of data protection. BCR are, however, not intended to be used as a means for allowing cross-border data transfers to companies not being part of that Group.


The concept and content of the BCR have mainly remained the same under the GDPR, with some minor changes. One significant change is the extension of the group of applicants. While BCR were previously only applicable to groups of undertakings, they are now also open to groups of enterprises engaged in joint economic activities. The term "group of undertakings" is defined in Art. 4 para. 19 GDPR as "controlling undertaking and its controlled undertakings". However, the term "group of enterprises engaged in a joint economic activity" is not defined in the GDPR. The term is open for interpretations but may be interpreted as to include a group of independent organizations which have agreed to cooperate, such as joint ventures. 


Also, the list of minimum requirements has been extended to include the contact details of each member of the Group, the description of the principles of privacy by design and privacy by default, the right not to be subject to profiling, the information obligations according to Art. 13 and 14 GDPR, and the details of the persons responsible for training and complaint procedures.


The Working Party provides in WP 256 (BCR for controllers) and WP 257 (BCR for processors) updated guidelines and very useful tables setting out the elements and principles that controllers and processors should state in their BCR, incorporating the new language in line with the GDPR and the necessary content mandated by Art. 47 GDPR and making a distinction between what must be included in the BCR and what must be presented to the competent supervisory authority in the BCR application. 


BCR must comply with a whole range of requirements and must contain all elements as set out in Art. 47 para. 2 GDPR, including:  


  • The structure and contact details of the group of undertakings, or group of enterprises engaged in a joint economic activity and of each of its members;


  • The data transfers or set of transfers, including the categories of personal data, the type of processing and its purposes, the type of data subjects affected and the identification of the third country or countries in question; 


  • Their legally binding nature, both internally and externally; 


  • The application of the general data protection principles, in particular purpose limitation, data minimization, limited storage periods, data quality, data protection by design and by default, legal basis for processing, processing of special categories of personal data, measures to ensure data security, and the requirements in respect of onward transfers to bodies not bound by the BCR;


  • The rights of data subjects in regard of processing and the means to exercise those rights, including the right not to be subject to decision based solely on automated processing, including profiling, the right to lodge a complaint with the competent supervisory authority and before the competent courts, and to obtain redress and, where appropriate, compensation for a breach of the BCR;


  • The acceptance by the controller or processor established on the territory of a Member State of liability for any breaches of the BCR by any member concerned not established in the Union, whereby the controller and the processor shall be exempt from that liability, in whole or in part, only if it proves that that member is not responsible for the event giving rise to the damage; 


  • How the information on the BCR, in particular on the provisions relating to the general data protection principles, the rights of the data subjects, and the liability for any breaches of the BCR is provided to the data subjects; 


  • The tasks of any data protection officer designated in accordance with Art. 37 GDPR or any other person or entity in charge of monitoring compliance with the BCR as well as monitoring training and complaint handling; 


  • The complaint procedures; 


  • The mechanisms for ensuring verification of compliance with the BCR. Such mechanisms shall include data protection audits and methods for ensuring corrective actions to protect the rights of the data subject. Results of such verification should be communicated to the DPO or any other person in charge of monitoring compliance with the BCR and to the board of the controlling undertaking, and should be available upon request to the competent supervisory authority; 


  • The mechanisms for reporting and recording changes to the BCR and reporting those changes to the supervisory authority; 


  • The cooperation mechanisms with the supervisory authority to ensure compliance by any member of the group of undertakings, or group of enterprises engaged in a joint economic activity, in particular by making available to the supervisory authority the results of verifications; 


  • The mechanisms for reporting to the competent supervisory authority any legal requirements to which a member of the group of undertakings, or group of enterprises engaged in a joint economic activity is subject in a third country which are likely to have substantial adverse effect on the guarantees provided by the BCR; and 


  • The appropriate data protection training to personnel having permanent or regular access to personal data. 


3       What do companies commit themselves to when signing the BCR?


By signing the BCR, companies undertake to comply with and implement the rules, in particular to: 


  • set up a procedure for managing and monitoring the implementation of the BCRs; 


  • make the BCR binding on employees; 


  • make the rights of data subjects easily accessible, as set out in the BCR, e.g. via the intranet and the Internet; 


  • introduce disciplinary procedures for staff who infringe the BCRs; 


  • comply with the data protection principles as set out in the BCR; 


  • provide basic training for all employees and specific training for employees with regular access to personal data; 


  • carry out regular compliance assessments on data protection to ensure the effective application of the BCR; 


  • establish a procedure to ensure adequate handling of complaints; 


  • accept liability for any breach of its obligations under the BCR; 


  • cooperate with other Group companies and support them in dealing appropriately with inquiries from supervisory authorities or other authorities as well as from data subjects; and


  • cooperate with and allow audits by the relevant regulatory authorities.


4   What should organizations consider before applying for BCR?


The use of BCR as an appropriate safeguard for international data transfers from the EEA requires the approval of the competent supervisory authority in the relevant jurisdiction following the consistency mechanism set out in Art. 63 and 64 GDPR. The competent supervisory authority will approve the BCR under the condition that: 


  • BCR are legally binding and enforceable on the undertakings concerned; 


  • BCR expressly confer on the data subjects’ enforceable rights concerning the processing of their personal data; and


  • BCR comply with the minimum information requirements set out in Art. 47 para. 2 GDPR. 


Before applying for BCR approval, an organization should carefully consider and answer some key questions: 


What does the company want to achieve with the approved BCR? 


Is the only objective to facilitate the free flow of personal data within the Group? If so, has the organization considered alternatives, if any, to achieve this objective, such as concluding an intra-group data transfer agreement (“IGDTA”)? Alternatively, is the company's goal, besides safeguarding cross-border data transfers, also to achieve and demonstrate accountability and commitment to responsible data use? If so, the organization should assess whether BCR are the right approach or whether there are other options such as certification or a code of conduct, which might be more suitable for achieving the interests of the organization. 


Which BCR should be implemented?


The organization must determine if it wants to apply for BCR for controllers or BCR for processors, or both. Depending on that decision, the appropriate requirements must be fulfilled. 


What shall be the scope of the BCR?


Shall the BCR only cover personal data transferred from the EEA within the Group or shall they cover all processing of personal data within the Group? This last option would include any data and go far beyond the legal requirements extending the liability and privacy rights. This extension is ultimately a decision that each organization must take and may be appropriate for organizations that have decided to establish the same set of rules, standards and rights throughout the whole organization, irrespective of the jurisdiction and legal requirements. The organization must also determine if it wants to cover all personal data or limit the BCR to only a set of data such as HR or customer data. Finally, the organization must determine if all members of the Group shall be bound by the BCR or only a selected number of companies.


Which supervisory authority should be the lead authority for the BCR (“BCR Lead”)?


The BCR Lead is the authority that acts as the single point of contact with the applicant organization during the authorization procedure and the application process in its cooperation phase. The BCR Lead may differ from the "one-stop-shop" lead supervisory authority according to Art. 56 GDPR, which is mainly involved in handling data breaches and investigatory or enforcement activities in cross-border processing operations within the EU. The organization applying for BCR authorization must justify the reasons why a particular supervisory authority should be considered as the BCR Lead. The criteria for such justification are set out in WP 263:


  • The location of the Group’s European headquarters; 


  • The location of the company within the Group with delegated data protection responsibilities; 


  • The location of the company which is best placed (in terms of the management function, administrative burden, etc.) to deal with the application and to enforce the BCR in the Group; 


  • The place where most decisions in terms of the purposes and the means of the processing (i.e. transfer) take place; and


  • The member state within the EU from which most or all transfers outside the EEA will take place.


For companies with their head office or principal place of business in the EU, the justification is quite simple. However, how should companies with their registered office outside the EU and without a principal place of business in the EU choose the appropriate supervisory authority and justify their choice? What arguments could be put forward if there is no Member State within the EU from which most or all transfers are made outside the EEA, but such transfers are roughly the same between all entities in the EU? In this case, the organization may delegate responsibilities to the Group company that is best placed to process the application for BCR on behalf of the Group. This entity should be located in one of the most important countries for the Group with a strong presence and at the same place as the chosen supervisory authority. 


Once the organization has selected the BCR Lead based on the criteria mentioned above, it will submit its application to that supervisory authority. It should be noted, however, that the selected supervisory authority is not obliged to accept the choice if it believes that another supervisory authority is more suitable to be the BCR Lead, in particular taking into account the workload and number of pending BCR applications. The requested supervisory authority will share the application with all concerned supervisory authorities to make a final decision on which supervisory authority is appointed as BCR Lead. 


It is advisable that the organization contacts the selected supervisory authority before applying to check whether the supervisory authority is, in principle, willing to act as BCR Lead or whether there may be objections from the supervisory authority, for example, due to lack of resources to deal with the application in a timely manner. 


What should the liability system look like?


Art. 47 para. 2f requires the acceptance by the controller or processor established on the territory of a Member State of liability for any breaches of the BCR by any member concerned not established in the Union. WP 256 and WP 257 provide that, where it is not possible for a Group with particular corporate structures to impose on a specific entity to take all the responsibility for any breach of the BCR outside of the EU, it may provide that every BCR member exporting data out of the EU on the basis of the BCR will be liable for any breaches of the BCR by the BCR member established outside the EU which received the data from this EU BCR member. Will it be acceptable for the BCR Lead to introduce an alternative liability system in line with the Standard Contractual Clauses? If not, which Group company could take responsibility? What are the options? Clarification of this issue is crucial, especially for companies based outside the EU which do not have a main establishment in the EU. For some organizations, it may not be feasible to allocate responsibility for the payment of damages to a local entity as a result of a breach of the BCR by a Group company outside the EU. 


What is the implementation status of the data privacy management program within the organization?


Has the organization already implemented global standards, policies and procedures, and if so, what is the maturity level at the corporate level and throughout the organization? Where are potential gaps and risks? Depending on the groundwork done and the maturity level of the data protection management program, the BCR approval process may take longer or shorter. 


Is the buy-in of key stakeholders secured? 


Do key stakeholders, from executive management to key country organizations and functions, offer their buy-in to the process? Stakeholder support requires their awareness and understanding of the need and benefits of implementing BCR, the commitments that each business unit and function must make with BCR approval, and the expectations placed in them. Preliminary discussions and presentation of the business case with these stakeholders are therefore an essential step before applying for BCR.  


Are there sufficient resources and expertise to manage the approval and implementation of BCR? 


Is there a team in place to develop the BCR, collect all relevant information, involve the relevant functions, discuss with the BCR Lead and manage the communication and implementation of the BCR across the organization? This team may consist of a leader and project manager as well as contributors to critical functions and most important markets. A proper functioning internal team is crucial to a smooth approval process and implementation throughout the organization. For smaller companies with fewer resources and expertise in data protection and project management, the involvement of external experts should be considered.


5   What should organizations consider once BCR approval is obtained?


The approval of the BCR is an essential step in the whole process. However, the BCR have no practical effect if not correctly implemented throughout the Group. Therefore, in parallel to the approval process, it is crucial that the organization that is responsible for the implementation of the BCR puts in place a concrete and enforceable communication and implementation plan with responsibilities and reasonable timelines. Here are some suggestions as to what such a plan should at least contain: 


A communication plan that sets out who should inform whom, how, when and about what during the whole process. When applying for BCR approval, all Group companies and functions at the corporate and local level should be informed of the content and impact of the BCR, in particular their obligations, and of the progress of the BCR approval process. They should also be informed of the steps they need to take before approval to best prepare for the implementation of the BCR. Throughout the process, it is also advisable to address possible problems, questions and concerns to ensure the broadest possible support and to prevent serious issues or concerns from arising following the approval of the BCR. In some countries, works councils must also be informed or consulted, and finally, once approved and implemented, all employees who regularly process personal data must be informed and trained. Clear roles and responsibilities must be assigned to ensure appropriate communication at each level of the organization.


An implementation plan that is addressed to those functions and individuals responsible for implementing the privacy management program and the BCR, in practice the data protection officers, managers or champions, and outlines what needs to be done, when and how. The steps may include the preparation by adopting the Group privacy policy framework and implementing the data protection management program at the local level, signing the BCR and making them binding upon employees, training employees, verifying compliance with the BCR and handling complaints. 


Effective BCR require the establishment of an organization with responsible persons at corporate and local level to implement the BCR and monitor compliance. A person at corporate level should be appointed to maintain an updated list of BCR members, monitor the state of implementation and any changes, and report annually to the supervisory authority.


6   Why should organizations invest in BCR?


In practice, many companies have concluded so-called intra-group data transfer agreements (“IGDTA”) covering the cross-border transfer of personal data within their Group. So why should companies go through the effort of implementing BCR when they can achieve the same goal with an IGDTA? Companies with an IGDTA meet the legal requirements for cross-border data transfer. However, they may not benefit from the impact of BCR, which significantly increase awareness and understanding of privacy requirements within the organization and establish accountability for compliance with data protection requirements in each function and business unit at corporate and local levels throughout the organization. Also, the effort required to create an IGDTA that includes the evaluation of all types of data flows, categories of personal data, purposes and safeguards, as well as the recipients of the data, the documentation of this information, the possible translation into the local language and the signing of contracts by all affiliates, should not be underestimated. It requires the involvement of all business units and functions at global and local levels. At the same time, the IGDTA often remains in a drawer after signing and is never considered again. Rarely will companies implement an IGDTA by establishing appropriate policies, procedures, processes and training.


Organizations that develop and implement BCR regularly aim at achieving an appropriate data protection governance structure with uniform standards and processes across the enterprise and not only at transferring their data legitimately within the Group. With the approval of the BCR by the supervisory authorities, organizations also want to show that they not only take data protection seriously, but also effectively implement the requirements in the company and assume responsibility for compliance with data protection. 


BCR are based on a comprehensive and effective data protection management program with all the elements required to demonstrate accountability. These elements include: 


  • A governance structure with leadership and oversight of the data protection program;


  • A policy framework with policies and procedures to ensure fair and responsible processing of personal data;


  • Transparency through appropriate communication to data subjects;


  • Risk assessment and management at the program and data processing level;


  • Awareness raising and training of employees and others who process personal data;


  • Monitoring compliance with the data protection program and verification of its effectiveness through regular self-assessments and internal or external audits; and


  • Processes to adequately respond to data subjects' rights, complaints and inquiries, as well as privacy incidents and to enforce compliance with internal rules. 


Organizations subject to the GDPR and other stringent data protection acts must establish a comprehensive data protection management program including all the elements as listed above to ensure compliance with the applicable requirements and responsible data use. With the implementation of such a privacy management program organization are ready to consider applying for BCR approval in order to benefit from a valid data transfer mechanism while increasing their commitment to privacy within the company and promoting a culture of responsible data use.


To obtain approval of the BCR and ensure compliance with the commitments that are made with the application, the data privacy management program must, however, include specific procedures and processes. The organization must assign responsibilities for the implementation of the BCR to each BCR member, in particular for binding the company and its employees to the BCR and for publishing notices. It must further establish a complaint handling process, develop awareness-raising and training plans and have a mechanism to implement these plans, such as the introduction of regular e-learning for all employees and tailor-made training for specific functions and persons with data protection responsibilities. The organization must also establish an audit framework and a program to ensure that internal or external accredited auditors regularly verify compliance with the BCR.  A mechanism must also be put in place to track all changes and inform BCR members and the supervisory authority. A list of BCR members must be maintained and made available to all members who are required to inspect that list before transferring personal data across borders. 


BCR are ultimately a formalization and publication of the data protection management program. At the same time, they are a mechanism for demonstrating accountability to regulators, business partners, customers and individuals and integrating data protection and security into the company's culture. Processors also gain an immediate competitive advantage compared to other service providers that do not have BCR. The benefits of BCR are apparent and should be considered by any multinational company with cross-border data flows.  


7   Conclusions


BCR are not only a sustainable legal basis for data transfer but also a system that enables companies with approved BCR to be transparent to regulators, customers, consumers and business partners by disclosing the company's policies and procedures on how they process and secure personal data. At the same time, BCR help organizations demonstrate that they take data protection seriously and that they have adopted appropriate data management practices to ensure compliant and responsible data processing throughout the Group. By implementing BCR, organizations affirm their responsibility to comply with legal requirements and regularly go even beyond by implementing common standards and rights for individuals across the Group. BCR help to further improve the quality and maturity of the Group's privacy management program by fostering a culture of internal compliance and accountability and strengthening the overall trust of individuals, customers, business partners and regulators.


Implementing BCR brings a whole range of benefits not only for the Group itself but also for the data subjects and the supervisory authorities. The effort involved in the approval and implementation process pays off in any case, measured by the advantages for multinational companies, large or small, which stand for the legally compliant and responsible handling of personal data. At the same time, and as further motivation for companies to invest in BCR, it would be desirable for supervisory authorities to formally recognize BCR as an accountability system beyond a data transfer mechanism, along with certifications and codes of conduct, and to find ways to further speed up the approval process.