EU Parliament vote on asking Court's opinion on EU-Singapore digital agreement

In 2018 the EU commission adopted a new approach on the protection of personal data in trade agreements. This new approach was a major improvement over earlier ones based on GATS article XIV, which contain conditions, among them a necessity test. The strength of the 2018 proposal is threefold.

First, the recognition that the protection of personal data and privacy are fundamental rights.

Second, the creation of a positive right:

“Each party may adopt and maintain the safeguards it deems appropriate to ensure the protection of personal data and privacy, including through the adoption and application of rules for the cross-border transfer of personal data.”

Only after that comes “Nothing in this agreement …”, which is more limited, as it does not cover for instance earlier agreements.

Third, the new approach also ruled out supranational investor-to-state dispute resolution.

The EU used the 2018 approach in trade agreements with New Zealand (article 12.5) and Chile (article 19.6).

Unfortunately, in the agreement with the UK the EU used a weaker safeguard. The mention of data protection and privacy as a fundamental right went missing and the parties used other formulations.

Singapore is a data transfer hub and is one of the few countries that didn’t sign or ratify the International Covenant on Civil and Political Rights.

Again unfortunately, in the digital trade agreement (DTA) with Singapore, like earlier in the agreement with the UK, the EU again uses a weaker safeguard (article 6). The DTA drops the fundamental rights, drops the positive right, and weakens the “Nothing in this agreement …” formulation.

The weak safeguard may undermine our fundamental right to data protection and we may be vulnerable to weaponisation of personal data further down the line.

Allowing cross-border data flows through an adequacy decision seems in principle the correct way to approach the issue. Such decisions are EU decisions. If data protection in a third country deteriorates the EU can revoke the adequacy status – in principle.