Personal Data Transfers in International Trade and EU law: A Tale of Two ‘Necessities’
Yakovleva, S. (2020). Personal Data Transfers in International Trade and EU Law: A Tale of Two ‘Necessities’, The Journal of World Investment & Trade, 21(6), 881-919.
32 Pages Posted: 5 Oct 2021
Date Written: August 5, 2020
Cross-border flows of personal data have become essential for international trade. EU law restricts transfers of personal data to a degree that is arguably beyond what is permitted under the EU’s WTO commitments. These restrictions may be justified under trade law’s ‘necessity test.’ The article suggests that they may not pass this test. Yet, from an EU law perspective, the right to the protection of personal data is a fundamental right. An international transfer of personal data constitutes a derogation from this right and, therefore, must be consistent with another necessity test, the ‘strict necessity’ test of the derogation clause of the EU Charter of Fundamental Rights. This article shows how a simultaneous application of the trade law and EU Charter ‘necessities’ to EU restrictions on transfers of personal data creates a Catch-22 situation and sketches the ways out of this compliance deadlock.
Keywords: EU Charter of Fundamental Rights, digital trade, ‘necessity test’, personal data protection, WTO law
JEL Classification: K33, K39,
Suggested Citation: Suggested Citation