L 385/74 Official Journal of the European Union 29.12.2004 COMMISSION DECISION of 27 December 2004 amending Decision 2001/497/EC as regards the introduction of an alternative set of standard contractual clauses for the transfer of personal data to third countries (notified under document number C(2004) 5271) (Text with EEA relevance) (2004/915[EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (), and in particular Article 26(4) thereof, Whereas: (1) In order to facilitate data flows from the Community, it is desirable for data controllers to be able to perform data transfers globally under a single set of data protection rules. In the absence of global data protection standards, standard contractual clauses provide an important tool allowing the transfer of personal data from all Member States under a common set of rules. Commission Decision 2001/497/EC of 15 June 2001 on standard contractual clauses for the transfer of personal data to third countries under Directive 95/46/EC () therefore lays down a model set of standard contractual clauses which ensures adequate safeguards for the transfer of data to third countries. (2)  Much experience has been gained since the adoption of that Decision. In addition, a coalition of business asso- ciations (}) has submitted a set of alternative standard contractual clauses designed to provide a level of data protection equivalent to that provided for by the set of () OJ L 281, 23.11.95, p. 31. Directive as amended by Regulation (EC) No 1883/2003 (O] L 284, 31.10.2003, p. 1). @ O] L 181, 4.7.2001, p. 19. () The International Chamber of Commerce (ICC), Japan Business Council in Europe (JBCE), European Information and Communi- cations Technology Association (EICTA), EU Committee of the American Chamber of Commerce in Belgium (Amcham), Confe- deration of British Industry (CBI), International Communication Round Table (ICRT) and the Federation of European Direct Marketing Associations (FEDMA). standard contractual clauses laid down in Decision 2001/497/EC while making use of different mechanisms. Since the use of standard contractual clauses for interna- tional data transfers is voluntary as standard contractual clauses are only one of several possibilities under Directive 95/46/EC, for lawfully transferring personal data to a third country, data exporters in the Community and data importers in third countries should be free to choose any of the sets of standard contractual clauses, or to choose some other legal basis for data transfer. As each set as a whole forms a model, data exporters should not, however, be allowed to amend these sets or totally or partially merge them in any manner. The standard contract clauses submitted by the business associations aim at increasing the use of contractual clauses among operators by mechanisms such as more flexible auditing requirements and more detailed rules on the right of access. Moreover, as an alternative to the system of joint and several liability provided for in Decision 2001/497EC, the set now submitted contains a liability regime based on due diligence obligations where the data exporter and the data importer would be liable vis-a-vis the data subjects for their respective breach of their contractual obligations; the data exporter is also liable for not using reasonable efforts to determine that the data importer is able to satisfy its legal obligations under the clauses (culpa in eligendo) and the data subject can take action against the data exporter in this respect. The enforcement of clause I(b) of the new set of standard contractual clauses is of particular importance in this regard, in particular in connection with the possibility for the data exporter to carry out audits on the data importers’ premises or to request evidence of sufficient financial resources to fulfil its responsibilities.