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Insight
DEADLINE FOR ADOPTING NEW EU SCCS HAS NOW PASSED
Leonie Power
18/01/2023
Tessa Waite
LOCATIONS
United Kingdom
Businesses should take the necessary steps as soon as possible if they have not
already done so.
The deadline to adopt the new EU Standard Contractual Clauses (SCCs) was 27
December 2022. By that date, existing contracts concluded before 27 September
2021 that incorporated the old EU SCCs needed to be revised to incorporate the
new EU SCCs.
As previously reported in our blog on "The updated standard contractual clauses
— A new hope?", these new SCCs were adopted by the European Commission on 4 June
2021. A grace period until 27 December 2022 was afforded to organisations in
relation to contracts that were concluded before 27 September 2021, as long as
the relevant processing operations remained unchanged.
The objective of standard contractual clauses is to provide a mechanism for
safeguarding personal data when it is transferred outside of the EEA to a
country that is not deemed to provide adequate data protection in the eyes of
the European Commission. A transfer impact assessment (TIA) should also be
completed in tandem with the EU SCCs to ensure that there is "essential
equivalence" of data protection in the country of import and to assess whether
there is anything in the laws of the relevant country that would undermine
reliance on the EU SCCs. A TIA reviews the laws and practices of the relevant
country and assesses the risk of government interference, as well as the
availability of effective recourse for data subjects who have had their rights
infringed. One development under the new EU SCCs is that Clause 14 establishes
various contractual obligations with regard to carrying out a TIA and therefore,
failing to comply with these obligations, could give rise to not only claims by
aggrieved data subjects (with the possibility of hefty fines handed down by
regulators), but also a breach of contract claim.
To the extent that they have not already done so, businesses should take steps
as soon as possible to update their legacy contracts to bring them in line with
EU requirements and carry out the related TIAs. Companies should also keep in
mind the deadline for updating contracts with the UK's own standard contractual
clauses for international transfers. Having come into force in March 2022, the
international data transfer addendum to the EU SCCs (UK Addendum) or the
standalone international data transfer agreement (IDTA) must be used in all
contracts that require a data transfer mechanism by 21 March 2024. All contracts
entered into after 21 September 2022 should already be using the new UK Addendum
or IDTA, where applicable. For more information on this please see our blog "New
UK data transfer tools come into force". A TIA should also be carried out in
respect of transfers from the UK. We have commented previously on the ICO's new
approach to TIAs.
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