Cross-border data exchange
For example, state restrictions, such as mandatory data localisation, can be considered a non-tariff barrier to trade (NTB) in the digital economy. Regulations on cross-border data exchange in trade agreements can reduce such barriers to a necessary minimum. Similarly, international rules on data protection can help to create a reliable, open and trustworthy environment for cross-border economic exchange. In its Communication 374 (2019), the European Commission correctly stated that negotiations on data protection and trade are separate, but can be complementary.2
Free trade agreements EU-MERCOSUR-FTA After long negotiations (the negotiating mandate dates back to 1999), the parties agreed in principle on the text of a trade agreement between the EU and the MERCOSUR in July 2019. However, it is not yet clear when the agreement can be signed by the negotiating parties, given the current resistance in some EU Member States. It will regulate market access for certain services sectors. The rules on electronic commerce and telecommunications services can be found in the services chapter of the agreement. They aim to remove unjustified barriers to e-commerce, provide legal certainty for businesses, and ensure a safer online environment for consumers. The chapter contains binding rules prohibiting customs duties on electronic transmissions. The Parties agreed on provisions aimed at preventing excessive authorisation procedures, ensuring the legal validity and effectiveness of electronic contracts, and preventing the spread of data waste ("spam"). A separate chapter on cross-border data transfer, processing and localisation is not included. The article on general exceptions allows all parties to introduce and enforce measures to protect private data, provided that such measures do not result in arbitrary and unjustified discrimination. Horizontal chapter on data exchange for the European Commission Since summer 2018, the EU Commission has been negotiating chapters on digital trade in free trade agreements with third countries such as Australia, New Zealand, Chile and Indonesia. Part of such a chapter are provisions on data exchange.3 This represents an important development in terms of trade law. With regard to a definition of the term "personal data", the EU Commission is guided in this context by the existing definitions of the OECD and the Council of Europe (see below). This can be seen by looking at Article 6 IV of the EU negotiating text on a free trade agreement with Australia within the digital chapter. Content of the chapter: 4 The principle of the EU's approach is that data should circulate freely between the partners in the EU trade agreement. The circulation of data must not be restricted by four listed groups of cases (see also Article 5(1)). These are:
COM (2019) 374: “Whereas dialogues on data protection and trade negotiations must follow different tracks, they can complement each other. “ 3 http://trade.ec.europa.eu/doclib/docs/2018/july/tradoc_157130.pdf 4 https://trade.ec.europa.eu/doclib/docs/2018/december/tradoc_157570.pdf; Text of the EU Commission's proposal for a free trade agreement with Australia. The texts proposed for the negotiations with New Zealand, Indonesia and Chile are similar. 2
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