What does the Trade and Cooperation Agreement say about EU to UK personal data transfers?
No doubt you noticed that during the holidays the UK and the EU concluded a Trade and Cooperation Agreement on 24 December 2020. The Agreement provides a framework under which trade will take place following expiry of the transition period on 31 December 2020.
From 1 January 2021 the UK will become a “third country” for the purposes of the EU General Data Protection Regulation. Ordinarily this would mean that transfers of personal data could only take place from the EU to the UK if “appropriate safeguards” were implemented for the transfer, or the European Commission had adopted a formal “adequacy decision” recognising the UK as providing an adequate level of protection for personal data.
The Agreement varies this position for a further transitional period, introducing what the UK government refers to as a “bridging mechanism”. It provides that transfers of personal data from the EU to the UK will not be considered a transfer to a third country for a “specified period” of up to six months (namely the end of June 2021). This is subject to an important safeguard: if, during this period, the UK amends the data protection laws it has in place on 31 December 2020, or exercises certain powers under the Data Protection Act 2018 or UK GDPR without the agreement of the EU Partnership Council, the specified period shall end.
In the short term, this means businesses can continue to transfer personal data between the EU and the UK after 31 December 2020 without the need to take additional measures, such as entering into standard contractual clauses with counterparties. Data flows from the UK to the EU can also continue, since the UK has recognised the EU Member States as “adequate” jurisdictions for the purposes of UK law, on a transitional basis.
However, as this is a temporary arrangement, if the European Commission fails to adopt an adequacy decision in relation to the UK by the end of June 2021, businesses will find themselves facing the same difficulties as encountered during negotiation of both the Withdrawal Agreement and subsequently the Trade and Cooperation Agreement. That means the same precautionary measures should be adopted as before.
If you have any queries the Commercial team at Carson McDowell would be happy to help.
*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.