Short Reads

Brexit and data protection: preparing for a 'no-deal'

Brexit and data protection: preparing for a 'no-deal'

Brexit and data protection: preparing for a 'no-deal'

18.02.2019 NL law

As it stands, the UK will exit the European Union at midnight on 29 March 2019. Therefore, businesses within the UK, or with trade relations with the UK, would be best advised to assume that a no-deal Brexit is inevitable. The exchange of personal data  within the EU is governed by the General Data Protection Regulation (GDPR). In a no-deal Brexit, the GDPR will cease to be applicable in the UK upon its EU exit.

The national data protection authorities, united in the European Data Protection Board (EDPB), published an 'information note' on 13 February regarding personal data transfers in the event of a no-deal Brexit. The EDPB reaffirms the importance of making adequate arrangements for data streams to and from the UK in the event that no deal is reached. In particular, it sets out the options open to safeguarding the transfer of data to the UK under the GDPR once it leaves the European Union.

Data transfers from the UK

The UK has indicated that it will incorporate the GDPR into its legal system after Brexit As a consequence, data transfers from the UK to the rest of the EU should not be affected by Brexit, and will be subjected to the same safeguards as they are now.

Data transfers to the UK

More problematic, for the time being, are transfers of personal data to the UK. The EDPB's note indicates that, in the event  of a no-deal Brexit, the UK will become a 'third country' for the purposes of the GDPR. As a result, data streams from the EU towards that country may no longer flow freely as they do between EU-members, but must be subjected to one of the 'safeguards' envisioned by the GDPR, as set out below. 

Adequacy Decision

The adequacy decision is a mechanism, by which the European Commission may declare that a non-EER country offers a sufficient level of data protection in its legal system, and that no further measures by the data controller or processor are required for data streams to the UK. An adequacy decision for the UK would enable UK data transfers after a no-deal Brexit and is the preferred option under the withdrawal agreement. However, a possible Adequacy Decision for the UK is not expected before late 2020. Therefore, a 'legislation gap' between March 29th and the expected adequacy decision is highly likely.

Binding Corporate Rules

If the data is exported within a single group of companies or an international organisation, the company group may impose what are known as Binding Corporate Rules (BCRs) on its respective entities. This is essentially a 'Code of Conduct' that brings the non-EU entities in line with the data protection standards already applicable to their EU counterparts. Companies may draft their own BCRs, but they must be approved by the data protection authority of the company's lead authority. Such approval processes  take time and are not a quick solution that can be reached before the 30 March deadline.

Standard Model Clauses

The Standard Model Clauses (SMC) is a list of data protection clauses pre-approved by the European Commission. If incorporated in the agreement with a non-EU processor or joint controller the SMC is sufficient to comply with the GDPR's provisions on data transfers outside the Union. Separate versions exists for controller-to-controller transfers (both the original version and the alternative version can be used, depending on the parties' preference), and for controller-to-processor transfers. The SMCs must be signed by both parties, and must not be amended in any way in order to be valid.

Use of the SMCs will often be the most practical option, as these do not hinge on approval from a data protection authority.

Derogations

In exceptional circumstances, the data controller may transfer data outside the EU without any of the above safeguards in place. In particular, the transfer is permitted where the data subject has given explicit consent for the transfer. This is different from the 'general' form of consent which can be used as a grounds for processing, as the data subject must be informed of the particular risks associated with the data transfer.

Codes of conduct and certification mechanisms

Lastly, companies may adhere to approved codes of conduct set out by industry-specific representative bodies or associations and approved by the EDPB. In addition, certification bodies may be created to certify and monitor companies on a voluntary basis. However, these provisions are something for the future – no code or body has acquired the required approval from the EDPB as yet. It is therefore not expected that such tools will be in place for post-Brexit data transfers very soon, though it may be useful to contact your industry association to check if they are likely to be adopted in the near future.

Team

Related news

06.05.2021 EU law
Abuse of economic dependence: lessons drawn from the first judgments

Short Reads - On 22 August 2020, the ban on abuse of economic dependence was implemented in Belgium (Article IV.2/1 of the Code of Economic Law). Now that almost a year has passed and the first judgments have been rendered, we assess what first lessons can be drawn from these judgments. The rulings show that the ban is regularly relied upon in court and has lowered the hurdle for plaintiffs to make their case.

Read more

04.05.2021 NL law
Participatie en privacyregels: hoe te combineren onder de Omgevingswet?

Short Reads - In het stelsel van de Omgevingswet (Ow) is een belangrijke rol bedacht voor participatie bij de totstandkoming van besluiten. Het beoogde resultaat: tijdig belangen, meningen en creativiteit op tafel krijgen en daarmee een groter draagvlak en kwalitatief betere besluitvorming bereiken. Door een grotere betrokkenheid van meer personen gaan overheden en initiatiefnemers ook meer persoonsgegevens verwerken. Dit brengt privacyrisico’s met zich mee. Wat regelt de Ow op het gebied van privacy, de verwerking van persoonsgegevens en datagebruik?

Read more

01.04.2021 NL law
Slovak Telekom: ECJ on essentials of the ‘essential facilities’ doctrine

Short Reads - Only dominant companies with a “genuinely tight grip” on the market can be forced to grant rivals access to their infrastructure. According to the ECJ’s rulings in Slovak Telekom and Deutsche Telekom, it is only in this scenario that the question of indispensability of the access for rivals comes into play. In the assessment of practices other than access refusal, indispensability may be indicative of a potential abuse of a dominant position, but is not a required condition.

Read more

01.04.2021 NL law
Pay-for-delay saga ends with nothing new; but pharma quest continues

Short Reads - On 25 March 2021, the ECJ ended the Lundbeck pay-for-delay saga by dismissing the appeals from Lundbeck and five generic manufacturers against a European Commission ‘pay-for-delay’ decision. Following its recent Paroxetine judgment, the ECJ found that Lundbeck’s process patents did not preclude generic companies being viewed as potential competitors, particularly since the patents did not represent an insurmountable barrier to entry. In addition, the patent settlement agreements constituted infringements "by object".

Read more