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Europe Data Protection Digest | Notes from the IAPP Europe Managing Director, April 29, 2016 Related reading: Tim Cook talks Apple's privacy stance, pushback to app-tracking framework



Greetings from Brussels!

You may know this, but for the sake of laying groundwork: On 23 June 2016, the United Kingdom will hold a referendum — known as Brexit — about its continued membership in the European Union (EU). The question being posed is, "Should the United Kingdom remain a member of the European Union or leave the European Union?" The referendum is a simple in/out vote. No full Member State has ever left the EU and so the practicalities and overall impact surrounding a possible Brexit are somewhat uncertain; these are unchartered and choppy waters to navigate. Article 50 of the Lisbon Treaty contains a procedure for voluntary withdrawal from the EU, although it is not very detailed. If the result is a “leave" vote, the U.K. could complete the exit process and be out of the EU within two years, which is the projected timeframe it would take to negotiate a withdrawal. The clock would basically start ticking from that time when the U.K. government would notify the European Council of its intentions.

For the historians among you, the U.K. joined the then European Economic Community (EEC) in 1973 under the Conservative leader Edward Heath, along with the Republic of Ireland and Denmark. The EEC would subsequently be incorporated into the newly formed EU in 1993. Interestingly, two years after joining the EEC, a referendum was put to the citizens of the U.K. in 1975 under the Labor prime minister Harold Wilson on European membership; 67 percent of the electorate voted “Yes" to stay in Europe under renegotiated terms of entry.

Fast forward to the present day, and should Brexit become a reality, the United Kingdom’s future relationship with Europe would then depend on the trade agreement negotiated with the remaining European member states, not to mention with other non-EU nations. As it stands, the U.K. — as a Member State — and the EU are inextricably linked through a complex web of trading relationships and underlying  legislation that, to survive a Brexit, would be challenging to redefine, as well as reliant on both parties concluding effective trade agreements. This could be a very lengthy affair, indeed. In practice though, the EU may not be inclined to grant the U.K. a particularly favorable deal for fear it would encourage other Member States to leave the EU; the simple argument being that it would set a precedent undermining the principle of adherence to membership. 

In what concerns the recently passed GDPR, businesses might well be mistaken in thinking that a vote to leave Europe will provide an escape from complying with the regulation. In the modern digital age, where trade is increasingly dependent upon personal data, U.K. businesses that trade goods and services to EU citizens will effectively have to comply with the GDPR in the same way that other non-EU companies must comply, as will those U.K. companies that provide a variety of cross-border digital and hosting services to EU companies. Think along the lines of the EU/U.S. position currently: Safe Harbor and Privacy Shield.

In a post-Brexit world, doing business with companies in the U.K. could become problematic from a data protection compliance perspective,  given on-going debates as regards mass-surveillance powers and other considerations. Would the U.K. be adequate? One could conceivably imagine that the U.K. Data Protection Act of 1998 would need meaningful reform to comply with the GDPR in any case, to avoid trade obstacles and privacy infringements with the EU.

In short, the GDPR will remain enforceable — in its entirety — regardless of the referendum result, and U.K. companies will have to comply in order to do business with the EU. It is my hope that the U.K. will elect to remain in Europe. The Union is a stronger, more diverse entity with the U.K. on board. In an increasingly global economy and community, exit by any Member State seems to me an act of regression. To my mind, we have come too far to unravel, and while the world is imperfect at both EU and Member State levels, fundamentally Europe’s global impact, prosperity, and strength lies in its unity.




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