Outsourcing to Latin America under GDPR: what standard contractual clauses and a transfer impact assessment actually involve
Corpshore Spain editorial team · · · 8 min read
In summary: Mexico, Colombia and the Dominican Republic hold no European Commission adequacy decision, so outsourcing there with personal data requires standard contractual clauses and, depending on data sensitivity, a transfer impact assessment. Argentina and Uruguay do hold adequacy.
It is the first question any Spanish compliance lead asks when the Latin America corridor comes up, and the honest answer is more nuanced than yes or no.
Outsourcing to Latin America with Spanish customers' personal data is lawful, and it is also a process with specific requirements that must be met and documented. This article sets out what they are, without the defensive language they are usually wrapped in.
Which countries hold an EU adequacy decision?
An adequacy decision is the European Commission's recognition that a third country offers a level of data protection equivalent to the European one. Where it exists, data can flow to that country without additional safeguards.
In Latin America, Argentina and Uruguay hold adequacy decisions. Mexico, Colombia and the Dominican Republic do not, and those are precisely the three hubs that make up the most common outsourcing corridor between Spain and the region.
It is worth saying that plainly, because it is the information that most shapes a Spanish buyer's decision, and omitting it or burying it in a footnote is deception by presentation. Any competent data protection officer spots it on first review.
What are standard contractual clauses?
Standard contractual clauses are a contract template approved by the European Commission that the data exporter in the European Union and the importer in the third country build into their relationship. They oblige the importer to handle data with GDPR safeguards and give enforceable rights to the people whose data is transferred.
In practice this means the clauses go into the contract with the provider and, where the provider sub-contracts, into the contracts with those sub-processors too. The chain has to be complete: a clause signed with the main provider does not cover a sub-contractor left outside the paperwork.
They are not a signature formality. They impose real obligations on security measures, breach notification, cooperation with the supervisory authority, and how to respond to access requests from authorities in the destination country.
What is a transfer impact assessment?
Standard contractual clauses settle the contractual relationship between two parties, but they cannot change the destination country's legal framework. A transfer impact assessment examines exactly that: whether, in practice and given local legislation and the access powers of its authorities, the clauses provide sufficient protection.
The analysis looks at the country's law on government access to data, whether effective remedies exist for a European individual, and which additional technical measures can reduce the risk. Concrete measures follow: encryption, pseudonymisation or, most effective of all, not sending the data.
Not every transfer needs the same depth of analysis. A customer service operation working with a name, a contract number and a reason for the call has a different profile from a process handling health data or detailed financial records.
Which measure is most effective in practice?
Minimisation, almost always. Data that does not leave the European Economic Area does not need protecting at the destination, and in a surprising number of processes many of the fields being transferred are not needed to do the job.
A team booking appointments needs a name, a phone number and the customer's eligibility; it does not need the full record. A team handling shipment tracking needs the status and the delivery address; it does not need purchase history.
Reviewing which fields actually travel usually shrinks the problem more than any clause does, and it has the advantage of being a measure you can demonstrate to the supervisory authority.
What if the data cannot leave the European Union at all?
If your sector or internal policy requires exclusive residency in the European Economic Area, there are two routes and neither requires transfer instruments.
The first is an onshore team within Spain, which is the norm in banking, insurance, healthcare and the public sector. The second is a delivery hub in another European Union member state, which reduces cost against Spain while keeping data resident in the Union.
The third route, and the most common in practice, is to combine them: the sensitive process stays inside the European Union and the volume that is not sensitive goes to the corridor with the corresponding instruments.
Who is answerable if something goes wrong?
Your company, as controller, remains answerable to the individuals affected and to the Spanish data protection authority. The provider normally acts as processor and answers under the contract and GDPR, but that does not displace your position as controller.
That is why the data processing agreement should be reviewed before signature rather than after, and why the standard contractual clauses and the transfer impact assessment should form part of the proposal process. A provider who cannot show you those documents before signing is a risk in itself.
This article is general information, not legal advice. We work alongside your legal advisors, not in their place.