German law: Possibility of an international data transfer is not the same as an actual transfer

Katharina A. Weimer and Carolin Wagner of Fieldfisher Germany discuss a case which involved data transfers by an EU subsidiary of a US-based parent company, and Schrems II.

On 7 September 2022, the Higher Regional Court of Karlsruhe (Oberlandesgericht Karlsruhe, OLG Karlsruhe) overturned a decision by the Public Procurement Chamber of Baden-Württemberg(1) (Vergabekammer Baden-Württemberg, VK Baden-Württemberg). It ruled that a bidder may not be excluded from a public procurement procedure because of the involvement of an EU subsidiary of a US company as a hosting provider(2). The contracting authority may rely on the fact that personal data will be processed exclusively in Germany and will not be transferred to any third country, provided that a bidder guaranteed that no such transfer shall take place in the course of a procurement procedure. The decision of OLG Karlsruhe is legally binding(3).

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