The European Data Protection Board (EDPB) released a statement of guidance on Binding Corporate Rules (BCRs), for groups of undertakings, or enterprises which have the UK ICO as their lead supervisory authority (BCR Lead SA).
The EDPB released a statement of guidance on Binding Corporate Rules (BCRs), for groups of undertakings, or enterprises which have the UK ICO as their lead supervisory authority (BCR Lead SA). As shifts are made towards the official implementation of Brexit, many structural and procedural changes are being made for businesses. One such change, adopted on July 22, 2020, based on the analysis currently undertaken by the EDBP on the consequences of the CJEU judgment, Data Protection Commissioner v Facebook Ireland, and Schrems, regarding BCRs as transfer tools. The EDPB recently released a statement outlining BCR changes for Brexit implementation, complete with a table guide regarding the criteria for a BCR Lead SA change, how and why, and referencing the legislation for each criteria.
Procedural Changes for Authorized BCR Holders
Enterprise holders with the ICO as their competent Supervisory Authority (BCR Lead SA) will need to arrange for a new BCR Lead in the EEA, according to Article 29 Working Party, Working Document Setting Forth a Co-Operation Procedure for the approval of BCRs for controllers and processors under the GDPR, WP263 rev.01, endorsed by the EDPB. This change in BCR Lead will need to take place before the end of the Brexit transition period. For BCRs already approved under the GDPR, the new BCR Lead SA in the EEA will have to issue a new approval decision following an opinion from the EDPB. However, no approval by the new BCR Lead SA is necessary for BCRs for which the ICO acted as their BCR Lead SA under Directive 95/46/EC.
Content Changes for Authorized BCR Holders.
Before the end of the Brexit transition period, BCR holders with the UK’s ICO as their BCR Lead SA will need to amend their BCRs, referencing the EEA legal order. Without these changes (or a new approval, where applicable), by the end of the transition period, these enterprises or groups of undertakings will no longer be able to use their BCRs for transfers of data outside the EEA beyond the transition period.
Procedural Changes for BCR Applications Before the ICO.
Any groups of undertakings of enterprises with BCRs at the review stage with the ICO are encouraged to identify a new BCR Lead SA according to the guidance of the WP263 rev.01 before the end of the Brexit transition period. They will need to contact the new SA and provide the necessary information to apply to have the SA considered as the new BCR Lead SA. The new BCR Lead SA will then take over the application process and begin the aproval procedure, subject to an opinion of the EDPB.
Groups of undertakings or enterprises may choose to transfer their application to a new BCR Lead SA after approval by the ICO, in which case, the new BCR Lead SA will need to approve this new application before the end of the transition period, as the new competent SA, according to Article 47.1 GDPR.
Content Changes for BCR Applications Before the ICO.
Groups of undertakings or enterprises with BCRs in the process of approval by the ICO must make sure that their BCRs refer to the EEA legal order with information on expected changes, before the end of the Brexit transition period.
General Changes for BCR Applications
Any Supervisory Authority in the EEA, approached to act as the new BCR Lead SA, will consider whether it is indeed the appropriate SA on a case by case basis, based on the criteria of the WP263 and in collaboration with any other concerned Supervisory Authorities. The EDPB has provided a checklist of elements for Controller and Processor BCRs which need to be changed due to Brexit, as part of this statement released last month.
