The upcoming date of December 27, 2022, marks the end of the roughly one year and a half-long transition period that companies had to replace any the old versions of the standard contractual clauses for international transfers of personal data by the new standard contractual clauses, which the European Commission adopted on June 4, 2021.  As of December 27, 2022, EU Supervisory Authorities may start GDPR enforcement proceedings against any companies that still on to the old version of the standard contractual clauses.

Covington is well placed to assisting clients in amending their contracts to take into account the new standard contractual clauses and, more generally, to ensure compliance with the GDPR rules on international data transfers.

Other Recent Developments

Executive order to Implement EU-U.S. Data Privacy Framework

On October 7, 2022, President Biden signed an Executive Order directing the steps that the United States will take to implement its commitments under a new EU-U.S. Data Privacy Framework.  The Executive Order on Enhancing Safeguards for United States Signals Intelligence Activities is intended to address the concerns raised by the Court of Justice of the EU in its Schrems II judgment on July 16, 2020, which annulled the prior EU-U.S. Privacy Shield. 

The European Commission is now assessing the Executive Order.  Assuming the assessment is positive, which is widely expected, the Commission will prepare a draft adequacy decision pursuant to Article 45 of GDPR.  The European Commission is also expected to confer with the EDPB, and EU Member States must approve it.  The formal adoption process is expected to take around six months, and could result in the final adequacy decision’s publication before the Summer of 2023.

Once adopted, privacy advocacy groups are expected the challenge the new Framework – some already have issued statements opining that the new Executive Order is insufficient.  Similarly, the German Supervisory Authority of Baden Wuerttemberg issued a statement expressing its concerns about deficiencies of the Executive Order.  The Italian Supervisory Authority also issued a statement on the Executive Order identifying the Order’s pros and cons.

Other Standard Contractual Clauses for non-EU Controllers Subject to The GDPR

The European Commission is, in parallel, working on standard contractual clauses for international data transfers to controllers and processors established outside of the EU that are subject to the GDPR.  This includes, for example, controllers outside of the EU that target goods or services to individuals residing in the EU.  The European Commission is drafting these new clauses because the existing new standard contractual clauses, adopted on June 4, 2021, are meant to be used only for transfers of personal data to controllers and processors outside of the EU that are not subject to the GDPR. 

***

The Covington team will keep monitoring any developments on international data transfers and continue to report on them on our blog Inside Privacy.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as Privacy International and the European security agency, ENISA.

Photo of Kristof Van Quathem Kristof Van Quathem

Kristof Van Quathem advises clients on information technology matters and policy, with a focus on data protection, cybercrime and various EU data-related initiatives, such as the Data Act, the AI Act and EHDS.

Kristof has been specializing in this area for over twenty…

Kristof Van Quathem advises clients on information technology matters and policy, with a focus on data protection, cybercrime and various EU data-related initiatives, such as the Data Act, the AI Act and EHDS.

Kristof has been specializing in this area for over twenty years and developed particular experience in the life science and information technology sectors. He counsels clients on government affairs strategies concerning EU lawmaking and their compliance with applicable regulatory frameworks, and has represented clients in non-contentious and contentious matters before data protection authorities, national courts and the Court of the Justice of the EU.

Kristof is admitted to practice in Belgium.

Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.