9.1 Chapters and Annexes on Data Protection
From the sample under analysis, a rather narrow set of agreements presents explicit
references to European standards on data protection. The EEA incorporates virtually
all EU rules on the issue and made continuous efforts to keep apace with the whole
regime in order to achieve a quite integrated market. The EU-CARIFORUM Agreement, albeit being the only instance in the sample, incorporates a complete chapter
that repeats most of the European minimum protection standards. The EU-Moldova
and EU-Ukraine agreements make references to EU legislation.
Agreements among non-European countries obviously make no such link, but it
is necessary to stress that the general reference to “international standards”, sometimes made more specific through the indication of the UNCITRAL Model Law on
Electronic Commerce (1996) or the OECD Guidelines on the Protection of Privacy
and Transborder Flows of Personal Data (2013), are always hortatory and are set in
the chapters on electronic commerce, not in general provisions.
It is difficult to generalise a pattern from such a narrow set of cases, each of which
presenting different solutions, both formally and materially. Nevertheless, it looks
reasonable to expect that agreements with countries that are in a list of possible
future EU Members incorporate standards closer to those already in force in the
Union.
9.2 Data Access and Transfer in Financial Services Chapters
Chapters on financial services treat data protection in articles on transfer and
processing of information and on the treatment of certain information. The first
issue is normally addressed by an Article protecting the freedom of trade through the
grant of transfer and processing of data necessary and proportional to the service.
The second one makes clear that nothing on the liberalisation of financial services
may be construed as a means to oblige Parties to allow access to sensitive and
confidential information.
The general permission of proportional and purposeful data transfer is adopted in
virtually all European treaties under analysis and is quite common in the agreements
between Asian and Latin American Countries. Only one American FTA, entered
into with Korea, has a provision of this class, although in the minimalist form, as far
as data protection is regarded.
Most of these provisions make reference to the “ordinary course of business”.
However, the wording varies more in other aspects of those provisions, sometimes
with significant results. Many treaties with European countries refer not only to
personal data, but also to “fundamental rights” and “liberties”. These expressions do
principiologically link the text to the European approach to the issue, since they
stress the dimension of fundamental right protection over the mere trade adjustment
necessary, i.a., to enhance the customers’ confidence.
514
J. A. F. Costa
From the sample under analysis, a rather narrow set of agreements presents explicit
references to European standards on data protection. The EEA incorporates virtually
all EU rules on the issue and made continuous efforts to keep apace with the whole
regime in order to achieve a quite integrated market. The EU-CARIFORUM Agreement, albeit being the only instance in the sample, incorporates a complete chapter
that repeats most of the European minimum protection standards. The EU-Moldova
and EU-Ukraine agreements make references to EU legislation.
Agreements among non-European countries obviously make no such link, but it
is necessary to stress that the general reference to “international standards”, sometimes made more specific through the indication of the UNCITRAL Model Law on
Electronic Commerce (1996) or the OECD Guidelines on the Protection of Privacy
and Transborder Flows of Personal Data (2013), are always hortatory and are set in
the chapters on electronic commerce, not in general provisions.
It is difficult to generalise a pattern from such a narrow set of cases, each of which
presenting different solutions, both formally and materially. Nevertheless, it looks
reasonable to expect that agreements with countries that are in a list of possible
future EU Members incorporate standards closer to those already in force in the
Union.
9.2 Data Access and Transfer in Financial Services Chapters
Chapters on financial services treat data protection in articles on transfer and
processing of information and on the treatment of certain information. The first
issue is normally addressed by an Article protecting the freedom of trade through the
grant of transfer and processing of data necessary and proportional to the service.
The second one makes clear that nothing on the liberalisation of financial services
may be construed as a means to oblige Parties to allow access to sensitive and
confidential information.
The general permission of proportional and purposeful data transfer is adopted in
virtually all European treaties under analysis and is quite common in the agreements
between Asian and Latin American Countries. Only one American FTA, entered
into with Korea, has a provision of this class, although in the minimalist form, as far
as data protection is regarded.
Most of these provisions make reference to the “ordinary course of business”.
However, the wording varies more in other aspects of those provisions, sometimes
with significant results. Many treaties with European countries refer not only to
personal data, but also to “fundamental rights” and “liberties”. These expressions do
principiologically link the text to the European approach to the issue, since they
stress the dimension of fundamental right protection over the mere trade adjustment
necessary, i.a., to enhance the customers’ confidence.
514
J. A. F. Costa