The »old« standard contractual clauses should no longer be concluded

A few days ago (27 September 2021) the first important date in the journey towards full applicability of the new standard contractual clauses has occurred.

On 4 June 2021, the European Commission adopted new standard contractual clauses which, as a result of the Schrems II judgment and the General Data Protection Regulation, are stricter than their predecessors and strengthen the rights of individuals, impose restrictions on disclosure of personal data to public authorities and a number of other obligations.

The new standard contractual clauses also set out two important deadlines, one of which has recently expired. Namely, they stipulate that from the entry into force of the new standard contractual clauses and until 27 September 2021, it was still allowed to conclude old standard contractual clauses (but, of course, new standard contractual clauses could also be concluded during this period), whereas from 27 September 2021 onwards, the parties can (and must) conclude exclusively the new standard contractual clauses, since as of this date, the old ones have been repealed.

Nevertheless, those who concluded the old standard contractual clauses before 27 September 2021 can use them for some time and legally transfer personal data on their basis, but should mark the next important date in their calendar – 27 December 2022, which is the deadline until which all old standard contractual clauses need to be replaced by new ones. Due to the modularity of the clauses and the many elements that the parties have to determine and agree upon among themselves (including the applicable law), we advise the parties to start negotiations on the content of the new standard contractual clauses as soon as possible.