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

30.04.2019 EU law
Climate goals and energy targets: legal perspectives

Seminar - On Tuesday April 30th, Stibbe organizes a seminar on climate goals and energy targets. Climate change has incited different international and supranational institutions to issue climate goals and renewable energy targets. Both the UN and the EU have led this movement with various legal instruments.

Read more

21.03.2019 NL law
15 aspects of Brexit you did not know

Short Reads - A Brexit without a deal, or with a deal that does not cover all relevant aspects, is still a potential scenario. We have highlighted a number of unexpected legal consequences of Brexit in such a no deal or incomplete deal scenario.

Read more

15.03.2019 EU law
European Court of Justice issues landmark ruling on parental liability

Short Reads - On 14 March the European Court of Justice issued a landmark judgment in the Skanska case. In this ruling, the Court of Justice held that parent companies can be held liable for the damage caused by a competition infringement committed by their subsidiary if the parent company (that holds all the shares in the subsidiary) has dissolved the subsidiary but continued its economic activity.

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy – en cookieverklaring