The proposed EU-Vietnam trade agreement contains weak safeguards for data protection. Basically, they are just as weak as the safeguards in the EU-Japan trade agreement. This is all the more frustrating as the EU commission knows how to do better. In January 2018 it adopted a proposal for a stronger safeguard, which consumer and digital rights organisations supported. However, after two years, the commission still hasn’t used the better safeguard in trade agreements. It is unknown whether the new commission will adopt it.
The European Parliament plenary vote on the EU-Vietnam agreement is expected February 10-13 2020. If we want to take fundamental rights seriously, the Parliament should reject the agreement. That opens the possibility to use the better safeguard in a new version of the agreement.
Commitments and safeguards
The EU-Vietnam trade agreement contains two commitments regarding cross-border flows of data.
First, according to article 8.45 each Party shall permit financial service suppliers of the other Party to transfer information in electronic or other form. The article contains its own safeguard, limited to this article, which is functionally similar to the safeguard in the EU-Japan agreement. For an analyses of the safeguard in the earlier EU-Japan agreement, see The Japan EU Economic Partnership Agreement: Flows of Personal Data to the Land of the Rising Sun; Marija Bartl and Kristina Irion, page 4 “Financial Services”; and EU-Japan trade agreement not compatible with EU data protection (by me), the section “Explicit data flow commitment”.
Second, the agreement contains cross-border services commitments (Chapter 8 Section C Cross-Border Supply of Services article 8.9). Cross-border services imply cross-border data transfers. This commitment doesn’t have its own exception, it only falls under a GATS article 14 like General Exception, article 8.53. This safeguard is weak. For an extensive analysis see K. Irion, S. Yakovleva and M. Bartl, “Trade and Privacy: Complicated Bedfellows? How to achieve data protection-proof free trade agreements”, independent study commissioned by BEUC et al., published 13 July 2016, Amsterdam, Institute for Information Law (IViR).
Known issues
These issues have been known for years. The EU commission acknowledged the issues by adopting a proposal for a better safeguard. And then, nothing happened. The commission still uses broken safeguards in trade agreements.
This is not the way to protect fundamental rights. If we want to take fundamental rights seriously, the Parliament should reject the agreement.
