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Data protection adequacy imminent for UK?

Posted on 15 February 2021

The Financial Times reports that a draft decision is imminently to be issued by the European Commission, which, if confirmed, will confer "adequacy" status on the UK in respect of transfers of personal data from the EEA to the UK.

The issue of data protection adequacy is felt to be crucial for economic reasons: in December's Trade and Cooperation Agreement between the EU and the UK, the parties stated their commitment to ensuring cross-border data flows to facilitate trade in the digital economy, and provided for a bridging arrangement permitting transfers of personal data for up to six months, while negotiations about UK adequacy continued.

The fact that a draft decision has now been prepared is very likely to mean that the final decision will be confirmed soon (although it has to be considered by the European Data Protection Board, and voted on by the committee of representatives of EU member states, set up under Article 93 of GDPR).

The news will be welcomed by companies whose business relies on, or even merely involves, the transfer of personal data between the EU and the UK. It should mean that costly arrangements to bolster such transfers using standard contractual clauses, or similar administrative mechanisms, will not be needed. However, it is quite possible that any final decision could be challenged before and by data protection regulators, and, ultimately, such challenges may end up in the European Court of Justice (or the High Court in the UK). Such challenges, which are certainly likely to be considered by civil society groups, may well turn on questions regarding the extent to which the UK's surveillance regime could be said to be in conflict with data protection law.

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