European Union: How Might A No-Deal Brexit Impact Your Organisation's Data Protection Obligations?

Last Updated: 22 January 2019
Article by Ann J. LaFrance and Chloe Rankin

The UK Parliament has today, 15th January 2019, rejected the Government's Brexit withdrawal agreement with the EU. This turn of events, which was widely anticipated, increases the prospect of a no deal Brexit, i.e. a break-up without a divorce settlement. According to law, the UK will leave the EU on 29th March 2019 with no deal unless Parliament has accepted the withdrawal agreement, or a modified version of it, or a new agreement has been reached with the EU and accepted by Parliament, before then. Although no deal remains an unlikely scenario, it would have consequences for your data protection obligations.

What does this mean for your organisation and the way you manage personal data?

There is much uncertainty about where the Brexit process will go from here. All scenarios other than no deal involve either accepting some other kind of agreement (which will have a transitional period), or a delay to the date of exiting the EU. So in all currently foreseeable circumstances except no deal, existing data protection arrangements will continue to apply from 30th March 2019 for at least some time. However, since no deal remains a possibility, it would be sensible at this stage to work out how your organisation would address that situation – unless your organisation's solution would be very complex to put in place, that is probably all you need to do for now.

Data flow scenarios

The first thing you should do is consider the data flows that could be affected. The main variants are described below.

A. Data transfers from the UK to the EU/EEA

All UK personal data will continue to be allowed to flow freely to all European Union ("EU"), European Economic Area ("EEA") states and Gibraltar.1 The UK Government (Department for Digital, Culture, Media & Sport) has transitionally recognised the unprecedented degree of alignment between the UK and EU's data protection regimes and would therefore at the point of exit continue to allow the free flow of personal data from the UK to the EU, though this position will be kept under review.

B. Data transfers from the EU/EEA to the UK

In the absence of an EU adequacy decision in favour of the UK (about which, see below), some form of safeguard will need to be put in place under the GDPR/Data Protection Act 2018 ("DPA") to protect international transfers from the EU/EEA to the UK.

The EU Standard Contractual Clauses ("SCCs")

One option permitted under the GDPR/DPA would be the SCCs for controller-to-controller, or controller-to-processor transfers. The EU/EEA data exporter should be able to rely on the SCCs when transferring EU personal data to the UK.

This will work in the following situations:

  • The EU/EEA data exporter is a controller of EU personal data and your organisation is a UK controller.
  • The EU/EEA data exporter is a controller of EU personal data and your organisation is a UK processor.

The SCCs, however, may not be employed when the EU/EEA data exporter is a processor (rather than a controller) of EU personal data. This is because the EU Commission has not produced approved processor to processor SCCs. A different mechanism will need to be used in this scenario.

Binding Corporate Rules ("BCRs")

EU personal data may be transferred freely to an organisation which has secured the approval of its BCRs of the relevant data protection regulator(s). BCRs allow organisations with operations in non-EU/EEA countries to transfer personal data internationally within the same corporate group. However there is a limited number of companies (around 50 – the list of which can be found here) which have obtained approval by EU data protection regulators. A new one-stop-shop approval system is now in place for multinationals that have their main establishment in one EU country, but even with these improvements, it is unlikely that the requisite BCR approvals could be obtained prior to 29th March 2019 if not already in hand or well underway at this time.

EU Adequacy Decision

If the European Commission were to issue a formal adequacy decision concluding that the UK data protection regime offers a level of protection that is "essentially equivalent" to that provided in the EU, this would mean that EU personal data could flow freely between the EU/EEA and the UK. However, the European Commission has previously stated that an adequacy decision cannot be made until the UK has exited the EU. In any case, the decision-making process generally takes time to reach the decision stage (usually at least a year) and, in the case of the UK, concerns may be raised in regard to the bulk collection of personal data under the Investigatory Powers Act 2016 ("IPA").2


If none of the above can be used, then the following derogations may potentially be relied on, subject to various conditions and limitations that are beyond the scope of this blog to cover:

  • data subject explicit consent,
  • fulfilling a contractual obligation,
  • public interest,
  • establishment, exercise or defence of legal claims,
  • vital interests of the data subject, or
  • if it is a one off restricted transfer and you have a compelling legitimate interest.3

C. Transfers of EU Personal Data from the UK to non-EU/EEA countries (onward transfers)

Adequacy decisions

Onward transfers of EU personal data from the UK to territories with an adequacy decision (found here) do not require any additional safeguards or authorisations from data protection regulators (although controller to processor transfers will continue to require implementation of the Article 28 clauses).

US Privacy Shield

The EU/US Privacy Shield framework is a form of adequacy decision that permits the transfer of EU/EEA personal data to the US on specific conditions that have to be met by any US organisation willing to become self-certified under the framework.

For UK companies to continue to avail of the Privacy Shield framework in the event of a no-deal Brexit, it will be necessary for the US Privacy-Shielded recipient (whether a member of the same corporate group as the UK data exporter, or a third party) to update its Policy and its public commitment to comply with the Privacy Shield to include the UK.4 The UK data exporter will also be responsible to check the US Privacy-Shielded organisation's publicly available privacy policy has been updated. This should be completed before 29th March 2019 if a no-deal Brexit actually materialises.

Standard Contractual Clauses ("SCCs")

As mentioned above SCCs may be used for onward transfers in the following scenarios:

  1. EU personal data is transferred from the EU/EEA controller data exporter to your organisation which is a UK processor, and you intend to transfer the EU personal data onward to a sub-processor who is a non-EEA based third party. In this case, this third party can "join" the SCC as a sub-processor with consent from the EU/EEA data exporter.
  2. EU personal data is transferred from the EU/EEA controller data exporter to your organisation which is a UK controller, and you intend to transfer the EU personal data onward to a controller who is a non-EEA based third party. However conditions must be satisfied, one of which is that the third party must become a signatory to the SCCs.

Binding Corporate Rules ("BCRs")

Approved BCRs can also continue to be used (see above).


The derogations can also be relied on subject to conditions and limitations (see above).

Official Guidance

For further information, the following guidance on transfers has been issued by the UK Government and the Information Commissioner's Office;

Additional Actions

A. Establishment in the EU

If you are a controller or processor in the UK with no establishments in the EEA and you offer goods or services to EU data subjects or your organisation monitors the behaviour of EU data subjects you must appoint an EU representative to liaise with data protection authorities in the EEA.

  • The ICO has clarified that this EU representative cannot be a DPO or one of your processors.
  • The EU representative's contact details must be included in your privacy notice(s).

B. Update your privacy notices

You should review and update your privacy information documents to better understand your data flows and flag areas with EU references to prepare for changes.


1 The EEA includes EU countries and also Iceland, Liechtenstein and Norway.

2 The European Court of Justice deemed the UK IPA unlawful in a judgment handed down in December 2016.

3 Please note that this derogation is rare, used only in exceptional cases. The transfer must pass the three-stage legitimate interest test.

4 For further instruction on this, please click the following link: EU/US Privacy Shield.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Venner Shipley LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Venner Shipley LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions