European Commission publishes draft UK adequacy decisions

On February 19th, 2021, the European Commission (EC) has published the draft of two adequacy decisions for the transfer of personal data to the United Kingdom (UK), one under the General Data Protection Regulation (GDPR) and the second for the Law Enforcement Directive. If approved, the decisions would confer adequacy status on the UK and ensure that personal data from the EU can continue to flow freely to the UK. In the EC’s announcement launching the process to adopt the newly drafted adequacy decisions Didier Reynders, Commissioner for Justice, is quoted:

We have thoroughly checked the privacy system that applies in the UK after it has left the EU. Now European Data Protection Authorities will thoroughly examine the draft texts. EU citizens’ fundamental right to data protection must never be compromised when personal data travel across the Channel. The adequacy decisions, once adopted, would ensure just that.

In the GDPR, this adequacy decision is based on Art. 45 GDPR. Article 45(3) GDPR empowers the EU Commission to adopt an implementing act to determine that a non-EU country ensures an “adequate level of protection”. This means a level of protection for personal data that is substantially equivalent to the level of protection within the EU. Once it has been determined that a non-EU country provides an “adequate level of protection”, transfers of personal data from the EU to that non-EU country can take place without further requirements. In the UK, the processing of personal data is governed by the “UK GDPR” and the Data Protection Act 2018, which are based on the EU GDPR. The UK is and has committed to remain part of the European Convention on Human Rights and “Convention 108” of the Council of Europe. “Convention 108” is a binding treaty under international law to protect individuals from abuses in the electronic processing of personal data, and in particular provides for restrictions on cross-border data flows where data is to be transferred to states where no comparable protection exists.

The GDPR adequacy decision draft addresses several areas of concern. One of these is the power of intelligence services in the UK. In this respect, the draft focuses on legal bases, restrictions and safeguards for the collection of information for national security purposes. It also details the oversight structure over the intelligence services and the remedies available to those affected. Another aspect discussed is the limitation of data subjects’ rights in the context of UK immigration law. The EC concludes that interference with individuals’ fundamental rights is limited to what is strictly necessary to achieve a legitimate purpose and that there is effective legal protection against such interference. As the UK GDPR is based on the GDPR and therefore the UK privacy laws should provide an adequate level of protection for data subjects, the main risks for EU data subjects do not lie in the current status of these laws but in possible changes of these laws in the future. For this reason, the EU Commission has built a fixed period of validity into the draft adequacy decision. If adopted, this decision would be valid for a period of four years and the adequacy finding could be extended for a further four years if the level of protection in the UK remains adequate. However, this extension would not be automatic, but subject to a thorough review. This draft marks the first time that the EU has imposed a time limit on an adequacy decision. Other adequacy decisions are subject to monitoring and regular review but are not time-limited by default.

The UK government welcomed the EC’s draft in a statement, while also calling on the EU to “swiftly complete” the process for adopting and formalizing the adequacy decisions, as the “bridging mechanism” will only remain in force until June 30th. Under the EU-UK Trade and Cooperation Agreement, the EU and UK agreed on a transition period of up to six months from January 1st, 2021, during which the UK is treated as an adequate jurisdiction (please see our blog post). The draft adequacy decisions address the flow of data from the EU to the UK. The flow of data from the UK to the EU is governed by UK legislation that has applied since 1 January 2021. The UK has decided that the EU ensures an adequate level of protection and that data can therefore flow freely from the UK to the EU.

Next, the non-binding opinion of the European Data Protection Board is sought (Art. 70 GDPR). After hearing the opinion of the European Data Protection Board, the representatives of the member states must then confirm the draft in the so-called comitology procedure. This procedure is used when the EC is given the power to implement legal acts that lay down conditions for the uniform application of a law. A series of procedures ensure that EU countries have a say in the implementing act. After the comitology procedure, the EC is free to adopt the drafts.