Summary of the Opinion of the European Data Protection Supervisor on the opening of negotiations for a new partnership with the UK

(The full text of this Opinion can be found in English, French and German on the EDPS website www.edps.europa.eu)

(2020/C 217/07)

Executive Summary

On 3 February 2020, the European Commission adopted a Recommendation for a Council Decision authorising the opening of negotiations for a new partnership with the United Kingdom of Great Britain and Northern Ireland.

The objective of the negotiations is to establish a partnership between the Union, and Euratom where relevant, and the United Kingdom, that is comprehensive and covers areas of interest outlined in the Political Declaration. Such partnership would be composed of three main parts: general provisions, containing, inter alia, the underlying principles and basis for cooperation as well as the governance provisions, an economic partnership and a security partnership.

The EDPS welcomes and supports the objective of the Commission to conclude a comprehensive partnership with the UK, establishing a cooperation the essential elements of which should be in particular the respect for and safeguarding of human rights as well as the rule of law, affirming the Parties’ commitment to ensuring a high level of personal data protection and fully respecting the Union’s personal data protection rules.

Given the close cooperation that is expected to continue between the EU and the UK at the end of the transition period, the EDPS also welcomes and supports the Commission’s commitment in its Recommendation to work towards the adoption of adequacy decisions, provided that the relevant conditions are met.

This Opinion aims at providing constructive and objective advice in relation to the envisaged partnership and the adequacy assessment.

The EDPS makes the following three main recommendations in relation to the envisaged partnership:

— ensuring that the security and the economic partnerships are underpinned by similar commitments to respect fundamental rights including adequate protection of personal data,

— defining priorities where arrangements for international cooperation should be concluded in matters other than law enforcement, in particular for the cooperation between public authorities, including Union institutions, bodies, offices and agencies,

— assessing the issue of onward transfers of personal data, in the light of the Opinion 1/15 of the CJEU both for the economic and the security partnerships.

With regard to the assessment of adequacy, the EDPS draws the attention to the following points:

— the importance of such assessment under the Law Enforcement Directive and under the GDPR for cooperation between public authorities and its impact on transfers by Union institutions, bodies, offices and agencies to the UK,

— the importance of defining the scope of the envisaged adequacy decisions, in particular under the Law Enforcement Directive,

— the adoption of an adequacy decision is subject to specific conditions and requirements and, should the Commission present a draft adequacy decision, the EDPB should be appropriately and timely involved,

— given the specific situation of the UK, any substantial deviation from the EU data protection acquis that would result in lowering the level of protection would constitute an important obstacle to the adequacy findings.

The EDPS finally recommends that the Union take steps to prepare for all eventualities, including where the adequacy decision(s) could not be adopted within the transition period, where no adequacy decision would be adopted at all, or where it would be adopted only in relation to some areas.

The EDPS remains at the disposal of the Commission, the European Parliament and the Council for further advice during the negotiations and before the finalisation of the envisaged partnership.

1. INTRODUCTION

1. On 1 February 2020, the United Kingdom of Great Britain and Northern Ireland (hereinafter the ‘UK’) withdrew from the European Union and European Atomic Energy Community. The arrangements for the withdrawal are set out in the Agreement on the withdrawal of the UK from the European Union and the European Atomic Energy Community ( 1 )

2. The Withdrawal Agreement entered into force on 1 February 2020 and provides for a transition period during which Union law applies to and in the United Kingdom in accordance with that Agreement. This period will end on 31 December 2020, unless the Joint Committee established under the Withdrawal Agreement adopts, before 1 July 2020, a single decision extending the transition period for up to 1 or 2 years. The Withdrawal Agreement ( 2 ) was accompanied by a Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom 2020/C 34/01 (hereinafter ‘Political Declaration’) ( 3 )

3. On 3 February 2020, the European Commission adopted its recommendation for a Council Decision authorising the opening of negotiations for a new partnership with the United Kingdom of Great Britain and Northern Ireland ( 4 ) (hereinafter ‘the Recommendation’). The Annex to the Recommendation (hereinafter ‘the Annex’) lays down the Council’s negotiating directives to the Commission, i.e. the objectives the latter should aim to achieve on behalf of the EU in the course of the negotiations.

4. The Recommendation was adopted on the basis of the procedure laid down in Article 218 of the Treaty on the Functioning of the European Union (TFEU) for agreements concluded between the EU and third countries. As for the substantive legal basis, the Commission recommends the Decision to be based at this stage on Article 217 TFEU (association agreement) while recognising that ‘the substantive legal basis for the signature and conclusion of the new partnership can only be determined at the end of the negotiations’.

5. ‘The envisaged partnership is a single package that comprises three main components: — general arrangements (including provisions on basic values and principles and on governance), — economic arrangements (including provisions on trade and level playing field guarantees), and — security arrangements (including provisions on law enforcement and judicial cooperation in criminal matters, as well as on foreign policy, security and defence)’ (5).

6. On 12 February 2020, the European Parliament adopted a Resolution ( 6 ) on the proposed mandate for negotiations for a new partnership with the UK. The EDPS welcomes that he was consulted on the Recommendation by the European Commission on 12 February 2020. This Opinion is without prejudice to any additional comments that the EDPS could make on the basis of further available information at a later stage. The EDPS expects to be consulted on the text of the draft partnership in due course, in accordance with Article 42(1) of Regulation (EU) 2018/1725.

5. CONCLUSION

20. The EDPS welcomes and supports the objective of the Commission to conclude a comprehensive partnership with the UK, establishing a cooperation the essential elements of which should be in particular the respect for and safeguarding of human rights as well as the rule of law, affirming the Parties’ commitment to ensuring a high level of personal data protection and fully respecting the Union’s personal data protection rules.

21. Given the close cooperation that is expected to continue between the EU and the UK at the end of the transition period, the EDPS also welcomes and supports the Commission’s commitment in its Recommendation to work towards the adoption of adequacy decisions, provided that the relevant conditions are met.

22. Therefore, this Opinion aims at providing constructive and objective advice to the EU institutions as the Commission seeks to obtain authorisation from the Council to negotiate a new partnership with the UK and intends to work towards adequacy decisions if the conditions are met.

23. To this end, in relation to the envisaged partnership, the EDPS recommends: — ensuring that the security and the economic partnerships are underpinned by similar commitments to respect fundamental rights including adequate protection of personal data, — defining priorities where arrangements for international cooperation should be concluded in matters other than law enforcement, in particular for the cooperation between public authorities, including Union institutions, bodies, offices and agencies, — assessing the issue of onward transfers of personal data, in the light of the Opinion 1/15 of the CJEU, not only in the framework of the processing of PNR data but both for the economic and the security partnerships.

24. With regard to the assessment of adequacy, the EDPS highlights the importance of: — such assessment under the Law Enforcement Directive and under the GDPR for cooperation between public authorities and its impact on transfers by Union institutions, bodies, offices and agencies to the UK, — defining the scope of the envisaged adequacy decisions, in particular under the Law Enforcement Directive.

25. He recalls that the adoption of an adequacy decision is subject to specific conditions and requirements and, should the Commission present a draft adequacy decision, the EDPB should be appropriately and timely involved. He emphasises that given the specific situation of the UK, any substantial deviation from the EU data protection acquis that would result in lowering the level of protection would constitute an important obstacle to the adequacy findings. The EDPS also recommends that the Union take steps to prepare for all eventualities, including where the adequacy decision(s) could not be adopted within the transition period, where no adequacy decision would be adopted at all, or where it would be adopted only in relation to some areas.

26. Finally, the EDPS remains at the disposal of the Commission, the Council and the European Parliament to provide advice at further stages of this process. The comments in this Opinion are without prejudice to any additional comments that the EDPS could make as further issues may arise and would then be addressed once further information is available. He expects to be consulted on the text of the draft partnership before its finalisation.

Brussels, 24 February 2020. Wojciech Rafał WIEWIÓROWSKI European Data Protection Supervisor

(1) OJ L 29, 31.1.2020, p. 7.

(2) Article 184 of the Withdrawal Agreement provides: ‘The Union and the United Kingdom shall use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the Political Declaration of 17 October 2019 and to conduct the relevant procedures for the ratification or conclusion of those agreements, with a view to ensuring that those agreements apply, to the extent possible, as from the end of the transition period.’

(3) OJ C 34, 31.1.2020, p. 1.

(4) COM(2020) 35 final.

(5) Page 2 of the Recommendation.

(6) 2020/2557(RSP) European Parliament Resolution of 12 February 2020 on the proposed mandate for negotiations for a new partnership with the United Kingdom of Great Britain and Northern Ireland (P9_TA(2020)0033).