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GPDR after Brexit – Data transfers outside the EU

After years of negotiations the United Kingdom has officially left the European Union, therefore the UK has become a “third country”. We would like to take this opportunity to point out the special rules concerning the UK and data transfers outside the EU in general.
Data transfer to the UK

As we have noted in our latest article on Brexit, some changes need time to enter into force. According to the withdrawal agreement concluded between the UK and the EU, there will be a transition period until 31 December 2020. In this transition period, the GDPR is still applicable in the UK, so the UK would not be considered as a third country until the end of this year.

What happens after the transition period?

It is very important to note that any data processed before the end of the transition period shall continue to be processed in accordance with the GDPR. Thus, personal data transferred to the UK during the transition period shall be guaranteed the same level of safety as currently provided by the GDPR and data subjects have no cause to worry about their right to privacy.

After the transition period, the UK and the EU still need to iron out the specifics of data protection. Certainly, for most data controllers that would be most convenient if the UK continued to apply the GDPR.

However, in the event of a “no-deal” Brexit or if the “deal” excludes data protection, the rules of transferring data outside the EU would have to be applied to the UK.

Data transfers outside the EU

One of the most emphasized general rule of the GDPR is that transferring data outside the EU is not allowed only with a very few exceptions. There are three categories of these exceptions, “adequacy decisions” in Article 45, “appropriate safeguards” in Article 46 and “derogations for specific situations” in Article 49.

Adequacy decisions

With regards to Brexit, the second best scenario would be an EU Commission adequacy decision. Data may be transferred without any special rules or authorizations to third countries deemed to provide an adequate level of data protection. While the decision falls to the discretion of the Commission, we expect this to be a very likely outcome, as the UK has high standards of data protection in their national legislation.

Appropriate safeguards

Should the UK not be found adequate, the next option is for the data controller or processor to provide appropriate safeguards. These safeguards are subject to the approval/ adoption of the Commission and/or the supervisory authority. The most relevant of these safeguards are as follows:

• binding corporate rules (BCR) of a corporate group (approved by the supervisory authority);
• standard data protection clauses (adopted by the Commission);
• standard data protection clauses (adopted by a supervisory authority and approved by the Commission);
• an approved code of conduct together with binding and enforceable commitments of the controller or processor in the third country to apply the appropriate safeguards, including as regards data subjects’ rights;
• an approved certification mechanism together with binding and enforceable commitments of the controller or processor in the third country to apply the appropriate safeguards, including as regards data subjects’ rights.

The abovementioned options require either significant effort from the data controller (i.e. drafting BCRs or codes of conduct) or a proactive supervisory authority (i.e. drafting and adopting standard clauses). Since the GDPR’s entry into force, no standard clauses have been adopted yet. Consequently, most data controllers might find appropriate safeguards a barrier too high to entry.

Derogations for specific situations

The last option is derogations for specific situations, to be applied for exceptional cases and will not serve as legal basis for systematic or regular transferring of personal data. The most relevant of these situations are as follows:

• explicit consent of a data subject informed of the risks of transfer to the third country;
• transfer is necessary for the performance of a contract between the data subject and the data controller or a contract concluded in the interest of the data subject;
• transfer is necessary for the establishment, exercise or defence of legal claims;
• transfer is necessary in order to protect the vital interests of the data subject or of other persons, where the data subject is physically or legally incapable of giving consent.

In any event, if the data controller uses these derogations as basis for data transfer outside the EU, the transfer may only take place if it is not repetitive and concerns only a limited number of data subjects, in addition the controller must demonstrate a compelling legitimate interest and inform the supervisory authority as well as the data subject. This is considered the least favourable option for data controllers because of their obligations to inform.