International Data Transfers: EU publishes draft Adequacy Decision

The EU has published a draft adequacy decision in the UK’s favour, boosting the confidence of UK-based organisations that they may continue to receive the free-flow of personal data from parties in the EU.

For background, the EU GDPR does not permit transfers of personal data from the EEA to third countries without certain safeguards or exemptions being in place. Following Brexit, the UK became a “third country”.

This restriction does not apply, however, to third countries that the EU decides have “adequate” laws protecting EU personal data.

The EU had permitted the free-flow of personal data from the EEA to the UK as part of the transitional arrangements between the parties following Brexit and prior to the end of the transitional period on 31 December 2021.

The parties then agreed a four to six-month “grace period” from 1 January 2021, to give the EU time to consider whether to deem the UK “adequate” to receive EEA a free flow of EU personal data for the longer term.

It looks like the UK’s commitment to high data protection standards under the Trade and Cooperation Agreement and its continued close alignment with GDPR might have paid off. The EU published a draft adequacy decision in the UK’s favour on 19 February 2021, in a move welcomed by the UK’s data regulator, the ICO.

The draft adequacy decision is now with the European Data Protection Board (EDPB), who will deliver an opinion to the European Commission and representatives from the EU member states.

We await whether the draft decision clears the final procedural hurdles and gains formal approval. However, the draft decision represents an important and encouraging step in right direction for UK businesses seeking clarity on the continued free-flowing status of their EU data transfers in the medium to longer term.

We recommend that businesses continue to monitor the situation closely, and to factor this news into their projects and activities that involve EU data processing.

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.