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General Data Protection Regulation (GDPR): Does Your Company Fall Under the Regulation?

The European Union’s General Data Protection Regulation (GDPR) is no longer effective temporarily, but to a full extent, starting from 25 May 2018. Many companies, including Swiss ones, have adapted their processes to the new Regulation. Not all of them have to submit themselves to the GDPR, however. We will explain you why not.

Territorial and Extra-Territorial Applicability

The territorial applicability referred to in article 3 clause 1 of the GDPR exists if a data processing company is domiciled in the European Union. It is irrelevant whether processed data originates from EU residents or not, as well as whether processing takes place in the EU itself or elsewhere. If a data processing company’s registered office is located in the EU, in each case such a company falls under the GDPR.

The question regarding the applicability of the GDPR is more difficult for companies which are extra-territorial, i.e. are domiciled outside the European Union, e.g. in Switzerland, as they can also be affected under article 3 clause 2 of the GDPR. This is the case when they offer goods or services to EU residents or monitor their behaviour. Then EU customers would have to be solicited proactively; the mere availability of a website to individuals staying in the EU does not suffice. Soliciting EU customers, among other things, is likely to be deemed proactive if it is possible to order goods or services in any of the EU languages, to have payment accepted in euros or a website makes reference to specific customers in the EU, for example, by including terms and conditions of delivery to the EU. By contrast, if a Swiss website not specifically geared for EU customers is found by the latter themselves, and they order goods or services there, the company operating such a website does not fall under the GDPR. It falls under the GDPR, in turn, whenever it is involved in analysing customer data that come from the EU.

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