Brexit Bites, 1 June 2018

May 31, 2018

During a speech in Lisbon last weekend, EU Chief negotiator Michel Barnier said that the UK needs to rethink its hopes for GDPR after it leaves the EU.  In the next of our series of Back to Brexit Basics, we look at supply chain management and what businesses could be doing now to prepare for Brexit.

No place at GDPR table for the UK?

During a speech at the 28th Congress of the International Federation for European Law in Lisbon last weekend, EU Chief negotiator Michel Barnier said that the EU “cannot and will not” share its decision making powers with a third party, “including a former Member State who does not want to be part of the same legal ecosystem” as the EU.

Using the General Data Protection Regulation (GDPR), which came into force last week, as an example, Mr Barnier said that the UK could not have its wish of having its data commissioner sit on the European Data Protection Board, thereby remaining part of the EU wide mechanisms set out in the GDPR and for the UK to remain in the one-stop-shop mechanism after Brexit.

The EU Chief negotiator said that the only way to maintain continued data flows between the UK and the EU was an “adequacy deal”.  Mr Barnier said “as indicated in the European Council guidelines, the UK must understand that the only possibility for the EU to protect personal data is through an adequacy decision.”

At the moment, GDPR applies in the UK and the UK is considered ‘adequate’. Personal data can be transferred between Ireland and the UK and we can be confident that the protections that apply to personal data in Ireland will apply to personal data within the UK. This could change after Brexit if the UK is not bound by GDPR and could be considered non-adequate or a third country without a withdrawal agreement.  Data transferred from Ireland to the UK as a third country would need to meet the strict requirements set out in the GDPR.

Therefore having close cooperation on GDPR could simplify matters for UK businesses that operate in a number of EU Member States as it would allow them to deal with only one regulatory authority; a benefit enjoyed by EU Member States.  

However, the EU dismissed this idea saying that the UK needs to be more realistic with Mr Barnier saying "Let's be clear: Brexit is not, and never will be, in the interest of EU businesses."