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(RU) Article 3 . (EN) ai regulation Title

1. 본 규정은 유럽연합 역내의 컨트롤러 또는 프로세서의 사업장의 활동에 수반되는 개인정보의 처리에 적용되고, 이 때 해당 처리가 유럽연합 역내 또는 역외에서 이루어지는지 여부는 관계없다.

1. This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.

전문가 해설 지침 및 사례 법률 전문 (Recitals) 관련 교과서

전문가 해설

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지침 및 사례 법률

(EN)

Documents

WP29, Update of Opinion on applicable law in light of the CJEU judgement in Google Spain (2010).

Case Law

CJEU, Google Spain SL/Agencia española de protección de datos, C-131/12 (2014):

55. In the light of that objective of Directive 95/46 and of the wording of Article 4(1)(a), it must be held that the processing of personal data for the purposes of the service of a search engine such as Google Search, which is operated by an undertaking that has its seat in a third State but has an establishment in a Member State, is carried out ‘in the context of the activities’ of that establishment if the latter is intended to promote and sell, in that Member State, advertising space offered by the search engine which serves to make the service offered by that engine profitable.

56. In such circumstances, the activities of the operator of the search engine and those of its establishment situated in the Member State concerned are inextricably linked since the activities relating to the advertising space constitute the means of rendering the search engine at issue economically profitable and that engine is, at the same time, the means enabling those activities to be performed. (page 14)

CJEU, Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein/Wirtschaftsakademie Schleswig-Holstein GmbH, C-210/16 (2018):

… where an undertaking established outside the European Union has several establishments in different Member States, the supervisory authority of a Member State is entitled to exercise the powers conferred on it by Article 28(3) of that directive with respect to an establishment of that undertaking situated in the territory of that Member State even if, as a result of the division of tasks within the group, first, that establishment is responsible solely for the sale of advertising space and other marketing activities in the territory of that Member State and, second, exclusive responsibility for collecting and processing personal data belongs, for the entire territory of the European Union, to an establishment situated in another Member State. (page 14)

전문 (Recitals)

(22) 유럽연합 역내의 컨트롤러 또는 프로세서의 사업장(establishment) 활동과 관련한 개인정보 처리는 본 규정에 따라야 하고, 그 처리 자체가 유럽연합 역내에서 발생하는지 여부는 상관없다. 사업장이라 함은 안정적인 방식을 통해 효과적이고 실제적인 활동을 행하는 것을 의미한다. 그 방식의 법적 형태는 법인격을 가진 지점 또는 자회사를 통한 것인지에 관계없이 그와 관련한 결정적인 요인이 아니다.

(22) Any processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union should be carried out in accordance with this Regulation, regardless of whether the processing itself takes place within the Union. Establishment implies the effective and real exercise of activity through stable arrangements. The legal form of such arrangements, whether through a branch or a subsidiary with a legal personality, is not the determining factor in that respect.

(14) 본 규정이 정하는 개인정보 보호는 국적이나 거주지에 상관없이 개인정보 처리와 관련된 개인에게 적용되어야 한다. 본 규정은 법인의 명칭과 형태 및 법인의 연락처 등 법인, 특히 법인으로 설립된 사업체와 관련된 개인정보의 처리는 다루지 않는다.

(14) The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data. This Regulation does not cover the processing of personal data which concerns legal persons and in particular undertakings established as legal persons, including the name and the form of the legal person and the contact details of the legal person.

“An establishment in the Union”

The threshold for “stable arrangement [9]” can actually be quite low when the centre of activities of a controller concerns the provision of services online. As a result, in some circumstances, the presence of one single employee or agent of a non-EU entity in the Union may be sufficient to constitute a stable arrangement (amounting to an ‘establishment’ for the purposes of Art 3(1)) if that employee or agent acts with a sufficient degree of stability. Conversely, when an employee is based in the EU but the processing is not being carried out in the context of the activities of the EU-based employee in the Union (i.e. the processing relates to activities of the controller outside the EU), the mere presence of an employee in the EU will not result in that processing falling within the scope of the GDPR. In other words, the mere presence of an employee in the EU is not as such sufficient to trigger the application of the GDPR, since for the processing in question to fall within the scope of the GDPR, it must also be carried out in the context of the activities of the EU-based employee.

_{[9] Weltimmo, paragraph 31.}

The fact that the non-EU entity responsible for the data processing does not have a branch or subsidiary in a Member State does not preclude it from having an establishment there within the meaning of EU data protection law. Although the notion of establishment is broad, it is not without limits. It is not possible to conclude that the non-EU entity has an establishment in the Union merely because the undertaking’s website is accessible in the Union [10].

_{[10] CJEU, Verein für Konsumenteninformation v. Amazon EU Sarl, Case C‑191/15, 28 July 2016, paragraph 76 (hereafter “Verein für Konsumenteninformation”).}

Processing of personal data carried out “in the context of the activities of” an establishment

The EDPB considers that, for the purpose of Article 3(1), the meaning of “processing in the context of the activities of an establishment of a controller or a processor” is to be understood in light of the relevant case law. On the one hand, with a view to fulfilling the objective of ensuring effective and complete protection, the meaning of “in the context of the activities of an establishment” cannot be interpreted restrictively [12]. On the other hand, the existence of an establishment within the meaning of the GDPR should not be interpreted too broadly to conclude that the existence of any presence in the EU with even the remotest links to the data processing activities of a non-EU entity will be sufficient to bring this processing within the scope of EU data protection law. Some commercial activity carried out by a non-EU entity within a Member State may indeed be so far removed from the processing of personal data by this entity that the existence of the commercial activity in the EU would not be sufficient to bring the data processing by the non-EU entity within the scope of EU data protection law [13].

_{[12] Weltimmo, paragraph 25 and Google Spain, paragraph 53.}

_{[13] G29 WP 179 update – Update of Opinion 8/2010 on applicable law in light of the CJEU judgment in Google Spain, 16th December 2015}

Consideration of the following two factors may help to determine whether the processing is being carried out by a controller or processor in the context of its establishment in the Union

i) Relationship between a data controller or processor outside the Union and its local establishment in the Union

The data processing activities of a data controller or processor established outside the EU may be inextricably linked to the activities of a local establishment in a Member State, and thereby may trigger the applicability of EU law, even if that local establishment is not actually taking any role in the data processing itself [14]. If a case by case analysis on the facts shows that there is an inextricable link between the processing of personal data carried out by a non-EU controller or processor and the activities of an EU establishment, EU law will apply to that processing by the non-EU entity, whether or not the EU establishment plays a role in that processing of data [15].

_{[14] CJEU, Google Spain, Case C‑131/12}

_{[15] G29 WP 179 update – Update of Opinion 8/2010 on applicable law in light of the CJEU judgment in Google Spain, 16th December 2015}

ii) Revenue raising in the Union

Revenue-raising in the EU by a local establishment, to the extent that such activities can be considered as “inextricably linked” to the processing of personal data taking place outside the EU and individuals in the EU, may be indicative of processing by a non-EU controller or processor being carried out “in the context of the activities of the EU establishment”, and may be sufficient to result in the application of EU law to such processing [16].

_{[16] This may potentially be the case, for example, for any foreign operator with a sales office or some other presence in the EU, even if that office has no role in the actual data processing, in particular where the processing takes place in the context of the sales activity in the EU and the activities of the establishment are aimed at the inhabitants of the Member States in which the establishment is located (WP179 update).}

2. 본 규정은 개인정보의 처리가 다음 각 호와 관련되는 경우, 유럽연합 역내에 설립되지 않은 컨트롤러 또는 프로세서가 유럽연합 역내에 거주하는 정보주체의 개인정보를 처리할 때도 적용된다.

2. This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: