EU Commission Decision Reconciles Data Protection Rules with the Need for Effective Trade Defence and Trade Policy Investigations

On December 17, 2018, European Commission Decision (EU) 2018/1996 (the ‘Decision’) was published in the Official Journal of the European Union. The Decision lays down rules designed to reconcile the rights of individuals respecting their personal data, with the need for effective trade defence and trade policy investigations in the EU.

The power to adopt the Decision is provided for by EU Regulation 2018/1725 (the ‘Regulation’), which regulates the processing of personal data by the European Union’s institutions, bodies, offices and agencies (‘Union Institutions and Bodies’). The Regulation imposes obligations on Union Institutions and Bodies with respect to personal data, many of which reflect the rules that the EU General Data Protection Regulation (the ‘GDPR’) imposes on companies, individuals and other organizations. The rules imposed by the Regulation include:

  • Obligations to provide certain ‘transparency’ information to individuals when processing those individuals’ personal data;
  • Obligations to comply with requests from individuals where they wish to, for example, access their personal data, have such personal data deleted, or restrict the processing of their personal data; and
  • Obligations to inform individuals, in certain circumstances, where there has been a data breach involving those individuals’ personal data.

The Decision recognises that during trade defence and trade policy investigations, the European Commission (the ‘Commission’) will inevitably collect and process personal data (for example, during verification visits). In some circumstances, the Commission’s compliance with certain obligations under the Regulation could jeopardize the Commission’s trade defence and trade policy activities. The Decision therefore sets out, for example:

  • Rules to be followed by the Commission to inform individuals of the processing of their personal data when the Commission is conducting those investigations;
  • The conditions under which the Commission can restrict the application of certain rights and obligations provided for by the Regulation; and
  • Additional requirements to be complied with where the Commission restricts the application of those rights and obligations. This includes a requirement on the Commission to keep a record which, amongst other things, sets out the justification for the restriction.