Question 112 - CIPP-E discussion

The GDPR applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the EU, regardless of whether the processing takes place in the EU or not (Article 3(1)). The GDPR also applies to the processing of personal data of data subjects who are in the EU by a controller or a processor not established in the EU, where the processing activities are related to the offering of goods or services to such data subjects in the EU, or the monitoring of their behaviour as far as their behaviour takes place within the EU (Article 3(2)). Therefore, the GDPR would apply to the following entities:

A South American company that regularly collects European customers' personal data, as it is offering goods or services to data subjects in the EU.

A company that stores all customer data in Australia and is headquartered in a European Union (EU) member state, as it has an establishment in the EU.

A Chinese company that has opened a satellite office in a European Union (EU) member state to service European customers, as it has an establishment in the EU and is offering goods or services to data subjects in the EU.

The GDPR would not apply to the following entity:

A North American company servicing customers in South Africa that uses a cloud storage system made by a European company, as it does not have an establishment in the EU, nor is it offering goods or services to data subjects in the EU, nor is it monitoring their behaviour within the EU. The fact that it uses a cloud storage system made by a European company does not trigger the application of the GDPR, unless the cloud provider is also processing personal data on behalf of the North American company in the context of its activities in the EU.