As we approach the end of 2022, many will be glad to be concluding their EU Standard Contractual Clauses (EU SCCs) remediation projects. Some may of course just be starting them! While the original long stop date of 27 December 2022 seemed a long way away in mid-2021, it is now upon us. Anyone relying on the original or old EU SCCs, i.e. the standard data protection clauses issued under European Commission Decisions 2001/497/EC and 2010/87/EU, to transfer data ex-EEA must change to the new EU SCCs by 27 December 2022 in order for their data transfers to be compliant. For data transfers ex-Switzerland there is until 31 December 2022 for the ink to dry on the new EU SCCs.
For those relying on the old EU SCCs to transfer data ex-UK there is a little more breathing space. Any contracts concluded on or before 21 September 2022 using the old EU SCCs will continue to be valid and provide appropriate safeguards for the purpose of Article 46(1) of the UK GDPR until 24 March 2024, with the usual proviso that “the processing operations that are the subject matter of the contract remain unchanged and reliance on those clauses ensures that the transfer of personal data is subject to the appropriate safeguards.”
No matter whether you are transferring data ex-EEA, ex-Switzerland or ex-UK, any new contracts (since 28 September 2021) have needed to use the new EU SCCs or for ex-UK transfers the International Data Transfer Agreement or the International Data Transfer Agreement Addendum to the European Commission’s standard contractual clauses for international data transfers (since 22 September 2022).
And of course this may not be the end of further re-papering exercises as, depending on the outcome of the new EU-US Transatlantic Privacy Framework (for more information see our article here) and the outcome of the UK-US data partnership negotiations, it may be that in mid-2023 lots of US companies return to Safe Harbour III or Privacy Shield Mk II or, to use the correct name, the Data Privacy Framework. Some exporters and importers have tried to build this possibility into current re-papering exercises, but without doubt there will be more work to be done to make sure this is all papered correctly.
So more fun to come in 2023 BUT FOR NOW we wish everyone a happy holiday!