The EU-UK relationship and the road towards a smooth Brexit deal face new challenges. Two legal actions at the opposite ends of the procedural axis, an infringement procedure and a judgment by the Court of Justice (CJEU), interfere with and might change the post-Brexit situation.
On the one hand, the European Commission initiated an infringement procedure for the UK’s alleged violations of the Withdrawal Agreement. On the other hand, the latest legal judgement on data protection rendered by the CJEU can significantly obstruct UK’s post-Brexit data transfer flow with the bloc.
Ursula von der Leyen declared that the UK’s Internal Market Bill proves to be an ‘unpleasant surprise’ while reminding everyone of the words of Margaret Thatcher: ‘Britain does not break Treaties’. The controversial Bill is designed to govern free trade within the UK after Brexit. Nonetheless, not only that it breaches international law, but also undermines Article 5 of the Withdrawal Agreement which demands cooperation in good faith. Consequently, the EU took the first step in opening an infringement procedure by sending a letter of formal notice to the UK who has until the end of October to respond. The procedure can render the UK liable and thus, bound to ensure compliance with the Agreement or otherwise pay a fine.
The British government is not threatened by the procedure as the EU has opened over 800 similar actions against other countries. The Bill made its way through the House of Commons and moves forward.
At the same time, the CJEU’s latest decision on data protection in joint cases against the UK, France and Belgium, renders the UK’s surveillance practices incompatible with EU standards. The judgment deems unrestrained mass surveillance of phone and internet data to be unlawful unless there is a ‘serious threat to national security’. The finding comes right after the Data and Media Minister, John Whittingdale, stated that there was ‘no reason’ why a smooth data transition would not occur.
In light of the new judgement, the UK is expected to change its national legislation if it wishes to have an adequacy decision that attests the compatibility of national measures with EU legislation.
Failure to secure adequacy will impede the activities of companies as they will cease to be compliant with the GDPR. Digital trade is crucial to the economy of the UK considering that in 2019 67% of all services exported were of a digital nature and three-quarters of the data flow was conducted with EU countries. Additional legal and administrative procedures will have to be implemented to guarantee the continuation of a legitimate flow of data to and from continental Europe. It can be stated that the best alternative is the Standard Contractual Clauses (SCCs) which encompasses a set of conditions that the sender and the receiver of personal data are required to respect and fulfil.