The Issue of Data Protection in EU Trade Commitments: Cross-border Data Transfers in GATS and Bilateral Free Trade Agreements

Abstract

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(3), 881-894 | European Forum Insight of 9 December 2019 | (Table of Contents) I. Introduction. - II. Cross-border data transfers in the GDPR. - III. The regime under GATS: MFN, NT and market access vs. adequacy decisions. - III.1. GATS, MFN, NT and market access obligations. - III.2. Justifications. - IV. How do bilateral FTAs address trade and privacy interests? - IV.1. Examples from EUKOR, CETA and EU-Japan FTA. - IV.2. Provisions on Cross-border Data Flows and the Protection of Personal Data and Privacy (2018). - V. Conclusions. | (Abstract) The rapid technological developments and the increasing data flows have not yet been addressed through global coordination. The WTO has so far played a minor role, failing to update its treaties to the new reality of digital trade. To reduce the uncertainty as to the economic and privacy-related impacts of cross-border data flows, governments as well as the European Union have started including this topic and data protection concerns in Free Trade Agreements. This Insight will first investigate how the General Data Protection Regulation rules on the transfer of personal data might conflict with GATS' main commitments, and then consider how the EU has addressed data protection in the context of Free Trade Agreements.

Keywords

• general data protection regulation
• general agreement on trade in services
• free trade agreements
• cross-border personal data transfers
• adequacy decisions
• fundamental right to data protection