A customer from a country outside the EU books with us. May we send their data to the local partner?

If the transfer is necessary for the performance of the contract with the data subject, or for a contract in their interest with another party, you can use paragraph 1(b) or (c). The key word is necessity: the transfer must genuinely be needed to perform that contract. Recital 111 speaks here of occasional transfers in relation to a contract.

No derogation fits, but we need to send data to a country outside the EU once. What now?

Paragraph 1, second subparagraph, offers a last option under strict conditions: the transfer is not repetitive, concerns only a limited number of data subjects, is necessary for compelling legitimate interests that are not overridden by the interests and rights of the data subject, and you have assessed all circumstances and provided suitable safeguards. You inform the supervisory authority and the data subject of the transfer and document the assessment in the records under Article 30 (paragraph 6). Recital 113 calls this a residual case.

Article 49: Derogations for specific situations

Q: Can we just ask our customers for consent for every transfer outside the EU?

Consent is one of the derogations (paragraph 1(a)), but with conditions: the consent must be explicit and the data subject must first have been informed of the risks of a transfer without an adequacy decision and without safeguards. The derogations are also meant for certain cases, not as a standard route for all transfers (recital 111). Paragraph 1 applies only where Articles 45 and 46 offer no solution.

Praxikon tracks Article 49 (Derogations for specific situations) under the GDPR, alongside the EU AI Act, citing the source for every statement.

Chapter VIn force since 25-05-2018

Article 49 is the final piece of the rules on transfers to countries outside the EU. Where there is no adequacy decision under Article 45 and no appropriate safeguards under Article 46, a transfer may take place only in a limited set of specific situations, such as explicit consent of the data subject after being told about the risks, necessity for a contract with the data subject, important reasons of public interest, legal claims, vital interests, or a transfer from a public register (paragraph 1, first subparagraph). For cases where none of those derogations fits, paragraph 1, second subparagraph, allows a non-repetitive transfer concerning a limited number of data subjects based on compelling legitimate interests, provided all circumstances are assessed, suitable safeguards are in place and both the supervisory authority and the data subject are informed. Paragraph 3 excludes public authorities exercising their public powers from part of the derogations, and paragraph 6 requires the assessment for the residual ground to be documented in the records of Article 30. The article exists because there are situations where a transfer is needed but no structural solution is available; the derogations are meant for certain cases and the residual ground only for residual cases (recitals 111 and 113).

Key term: Derogation: an exception that allows a transfer to a country outside the EU in a specific situation, when there is no adequacy decision and no appropriate safeguards

Directly affects:controllerprocessordata subjectsupervisory authoritymember stateCommission

Praxikon’s reading of the text and the recitals; the official text below prevails.

Official text

In the absence of an adequacy decision pursuant to Article 45(3), or of appropriate safeguards pursuant to Article 46, including binding corporate rules, a transfer or a set of transfers of personal data to a third country or an international organisation shall take place only on one of the following conditions: (a) the data subject has explicitly consented to the proposed transfer, after having been informed of the possible risks of such transfers for the data subject due to the absence of an adequacy decision and appropriate safeguards; (b) the transfer is necessary for the performance of a contract between the data subject and the controller or the implementation of pre-contractual measures taken at the data subject's request; (c) the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and another natural or legal person; (d) the transfer is necessary for important reasons of public interest; (e) the transfer is necessary for the establishment, exercise or defence of legal claims; (f) the transfer is necessary in order to protect the vital interests of the data subject or of other persons, where the data subject is physically or legally incapable of giving consent; (g) the transfer is made from a register which according to Union or Member State law is intended to provide information to the public and which is open to consultation either by the public in general or by any person who can demonstrate a legitimate interest, but only to the extent that the conditions laid down by Union or Member State law for consultation are fulfilled in the particular case. Where a transfer could not be based on a provision in Article 45 or 46, including the provisions on binding corporate rules, and none of the derogations for a specific situation referred to in the first subparagraph of this paragraph is applicable, a transfer to a third country or an international organisation may take place only if the transfer is not repetitive, concerns only a limited number of data subjects, is necessary for the purposes of compelling legitimate interests pursued by the controller which are not overridden by the interests or rights and freedoms of the data subject, and the controller has assessed all the circumstances surrounding the data transfer and has on the basis of that assessment provided suitable safeguards with regard to the protection of personal data. The controller shall inform the supervisory authority of the transfer. The controller shall, in addition to providing the information referred to in Articles 13 and 14, inform the data subject of the transfer and on the compelling legitimate interests pursued.

A transfer pursuant to point (g) of the first subparagraph of paragraph 1 shall not involve the entirety of the personal data or entire categories of the personal data contained in the register. Where the register is intended for consultation by persons having a legitimate interest, the transfer shall be made only at the request of those persons or if they are to be the recipients.

Points (a), (b) and (c) of the first subparagraph of paragraph 1 and the second subparagraph thereof shall not apply to activities carried out by public authorities in the exercise of their public powers.

The public interest referred to in point (d) of the first subparagraph of paragraph 1 shall be recognised in Union law or in the law of the Member State to which the controller is subject.

In the absence of an adequacy decision, Union or Member State law may, for important reasons of public interest, expressly set limits to the transfer of specific categories of personal data to a third country or an international organisation. Member States shall notify such provisions to the Commission.

The controller or processor shall document the assessment as well as the suitable safeguards referred to in the second subparagraph of paragraph 1 of this Article in the records referred to in Article 30.

Source: EUR-Lex, Regulation (EU) 2016/679. Official text, reproduced without modification.

What does this mean for you?

Controller

You use paragraph 1 only when Articles 45 and 46 offer no solution, and you check for each transfer which derogation applies. If you rely on explicit consent, you first inform the data subject about the risks of a transfer without an adequacy decision and without safeguards (paragraph 1(a)). If you use the residual ground in paragraph 1, second subparagraph, you assess all circumstances, inform the supervisory authority and the data subject, and document the assessment and the safeguards in the records of Article 30 (paragraph 6).

Processor

The derogations in paragraph 1 are written from the controller's perspective; as a processor you transfer only after agreeing the legal basis. If your transfer relies on the residual ground in paragraph 1, second subparagraph, you too document the assessment and the suitable safeguards in your records (paragraph 6).

Data Protection Officer

You make sure the derogations are not used as a standard route for recurring transfers (recitals 111 and 113). You check that consent is explicit and given after the risks were explained (paragraph 1(a)), that reliance on public interest rests on a legal provision (paragraph 4), and that the assessment for the residual ground is in the records (paragraph 6).

Data Subject

If you give consent for a transfer under paragraph 1(a), you must first have been informed of its risks. For a transfer on the residual ground in paragraph 1, second subparagraph, you are informed of the transfer and the interests pursued, in addition to the usual information under Articles 13 and 14.

Compliance checklist

A derogation from paragraph 1 is used only when there is no adequacy decision under Article 45 and no appropriate safeguards under Article 46.For each transfer it is recorded which derogation in paragraph 1, first subparagraph, points (a) to (g), the transfer relies on.Consent for a transfer is explicit and was given after the data subject was informed of the risks (paragraph 1(a)).Reliance on important reasons of public interest rests on a provision of Union or national law that applies to the organisation (paragraph 4).A transfer from a public register never involves all of the data or entire categories of data in the register (paragraph 2).The residual ground in paragraph 1, second subparagraph, is used only for non-repetitive transfers concerning a limited number of data subjects, and the supervisory authority and the data subject have been informed of the transfer.The assessment and the safeguards for the residual ground are recorded in the records of processing activities under Article 30 (paragraph 6).Public authorities do not use derogations (a), (b) and (c) or the residual ground when exercising their public powers (paragraph 3).

Related recitals

(111)

Provisions should be made for the possibility for transfers in certain circumstances where the data subject has given his or her explicit consent, where the transfer is occasional and necessary in rel...

(112)

Those derogations should in particular apply to data transfers required and necessary for important reasons of public interest, for example in cases of international data exchange between competition ...

(113)

Transfers which can be qualified as not repetitive and that only concern a limited number of data subjects, could also be possible for the purposes of the compelling legitimate interests pursued by th...

(114)

In any case, where the Commission has taken no decision on the adequate level of data protection in a third country, the controller or processor should make use of solutions that provide data subjects...

Cross-references

Art. 30: Records of processing activities Art. 45: Transfers on the basis of an adequacy decision Art. 46: Transfers subject to appropriate safeguards

Frequently asked questions

← Art. 48: Transfers or disclosures not authorised by Union law Art. 50: International cooperation for the protection of personal data →

Connections

Guidelines

Recommendations 01/2020 on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data
2021-06-18 · final, European Data Protection Board (EDPB)

Legislation in motion

Council: Cyprus Presidency tables negotiating mandate, Coreper vote of 26 June 2026 cancelled
2026-06-22 · under negotiation, Raad van de Europese Unie, Antici-groep (vereenvoudiging) en Coreper