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Europe Data Protection Digest | Notes from the IAPP Europe Managing Director, 14 Dec. 2018 Related reading: Help benchmark industry practices

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Greetings from Brussels!

We are mid-December, and while we slowly edge toward the festive season and look to a new year, the world keeps turning at a frenetic pace! Whatever happened to those contracted Decembers? I guess they went the way of the slow summers — long gone, I fear. I certainly haven’t seen a slow month this year, and that includes August, the sacred vacation month for the European multitude.

On the political front, Europe is still locked in to the political machinations of Brexit. Monday this week saw the European Court of Justice ruling that the U.K. can unilaterally withdraw its notification to leave the EU without the sanction of the other 27 member states. High-browed stuff, indeed, the judgment itself holds that so long as an exit agreement between a member state and the EU has not come into force, or if no agreement has been struck before the expiration of the two-year Article 50 period, unilateral withdrawal of notification is possible. A mere 24 hours later, Theresa May canceled the U.K. Parliamentary vote on the Brexit deal on grounds she couldn’t win a favorable outcome requiring more time to defend the deal.

Are you keeping up? Come Wednesday evening, May was facing a vote of “no confidence” within her own Tory party. It was a momentous night for British politics — taken the magnitude of what was at stake — and once again fighting for her political survival, May came through with a weakened majority, with just over a third of her party voting against her.

A crisis still looms large ahead; Theresa May still needs to get the Brexit deal through Parliament. What has been abundantly clear of late is the increasing discontent of the U.K. political establishment being presented with a binary choice. The Brexit deal is unpopular on both sides of the party divide. The choices of taking the deal offered or crashing out of the EU are both equally undesirable outcomes for the majority of members of the House of the Commons. Moreover, it is unlikely that this malaise will affect the EU position. The deal on offer, as agreed between the U.K. and the EU, is the only deal on the table. The EU has been clear that it will not renegotiate the exit agreement. This political rollercoaster shows no sign of abating. Theresa May will now seek "assurances and clarifications" from the EU that the backstop solution on Northern Ireland will have a limited "sunset" clause if ever activated, before going back to Parliament for the vote.

Notably, in what concerns data transfers and protection around Brexit, the European Commission gave an update on their "no-deal Brexit" scenario planning in November. The adoption of an adequacy decision in favor of the U.K. is not part of the commission’s contingency planning. This means businesses will need to rely on alternative (legal) bases for transferring personal data from the EU to the U.K. unless and until an adequacy decision in respect of the U.K. is adopted. In short, the November communication from the commission references the “broad toolbox for data transfers to third countries,” including safeguards and derogations contained within the General Data Protection Regulation, which allow businesses to transfer personal data out of the EU.

Finally, and staying with the GDPR, at the IAPP we have released a new tool, the “EU Member State GDPR Derogation Implementation Tracker,” which maps the derogations to the regulation at national EU member level as required and to align with national law provisions. This is a tremendous resource for IAPP members and can be accessed through the Resource Center. Check out Emily Leach’s article on its release here. A massive thank you to our members across the EU for their hard work to make this a reality for the IAPP member community.

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