Does it make sense for a company to move its headquarters or establishment because of the General Data Protection Regulation?

Benedita Cunha Pinto

Keywords

Forum Shopping; Data Protection; Territorial Scope; Establishment; Standard Contractual Clauses; Representative.

Abstract

The article aims to make an analysis of the issue of the transfer of headquarters or even of the establishment because of the General Data Protection Regulation (Regulation (EU) 2016/679 of 27 April 2016). In a first phase we approach in detail the territorial scope of the GDPR in accordance with the establishment criterion and the targeting criterion. Then, we point out some limitations related to the execution of the aforementioned Regulation, as well as some reasons that may lead a company to consider transferring its registered office to a country outside the European Economic Area (EEA) or, simply, opting to resort to establishment migration. In this context, we use to address two mechanisms for implementing the GDPR – Designation of a Representative in the EEE and Standard Contractual Clauses – as they reveal matters of great practical interest to companies. Finally, we will make some proposals towards a possible prevention of establishment migration.