On 18 March, the Task Force for Relations with the United Kingdom (UKTF) of the European Commission published its Draft Text of the Agreement on the New Partnership with the United Kingdom (Draft Agreement). It translates the negotiating directives, approved by Member States, into a legal text, in line with the Political Declaration agreed between the EU and the UK. The Draft Agreement was sent to the UK following consultation with the European Parliament and the Council of the European Union, and aims to provide a tool to support the negotiations and enable progress with the UK’s relationship with the EU.
The Draft Agreement covers all areas of the negotiations. Most importantly for us, the Draft Agreement includes provisions around the digital economy and data protection. These draft provisions ensure that the parties commit to a high level of data protection and recognise the importance of promoting and protecting the fundamental rights of privacy and data protection. The parties also agree to cooperate (as much as national laws permit) at bilateral and multilateral levels, which may include dialogue, exchange of expertise, and cooperation on enforcement with respect to personal data protection.
Further, the Draft Agreement includes a section on digital trade, the objective of which is to facilitate trade in the digital economy, address unjustified barriers to trade enabled by electronic means and ensure an open, secure and trustworthy online environment for businesses and consumers. In the context of cross-border data flows, the Draft Agreement states that to achieve the objective, the parties must not restrict data flows by imposing, for example, requirements to use local computing facilities or on the localisation of data storage, or making cross-border transfers contingent on either of these, or prohibiting the storage of data in the other’s territory.
However, the Draft Agreement allows each party to adopt and maintain the safeguards it deems appropriate to ensure the protection of personal data and privacy, including through the adoption and application of rules for the cross-border transfer of personal data.
Although the Draft Agreement contains nothing ground breaking, it shows that the digital economy and data protection are very much at the forefront of negotiators’ minds. However, what businesses would really like to see is a decision from the European Commission which states that the UK is an adequate country with respect to data flows, thereby allowing a free movement of data between the UK and the EU (and not just from the UK to the EU). Such a decision will allow businesses to avoid the need to revisit their GDPR compliance programmes in order to further safeguard their data flows from the EU to the UK after the transition period. Nothing in the Draft Agreement gives us any indication that such a decision might be forthcoming, but the third round of negotiations concluded on Friday (15 May) so watch this space for further announcements on their progress.