On 12 July 2022, the EU Commission issued a Recommendation for a Council Decision authorising the opening of negotiations on cross-border data flows in the Agreement between the EU and Japan for an Economic Partnership, which was signed on 17 July 2018.

On 23 January 2019, Japan was granted an adequacy finding by the Commission. Consequently, transfers of personal data from a controller or a processor in the European Economic Area (EEA) to organisations in Japan covered by the adequacy decision may take place without the need for further authorisation.

The EDPS notes that the negotiations would exclusively concern cross-border data flows. Given that Japan has already been granted an adequacy finding by the Commission, the EDPS recommends that the reasons for why further negotiations on cross-border data flows are considered necessary be set out.

The EPDS welcomes the Commission’s condition that the provisions on cross-border data flows should be aligned with the horizontal provisions for cross-border data flows and personal data protection in trade negotiations, which were published in July 2018. In the EDPS’s view, these provisions represent a balanced compromise between public and private interests as they allow the EU to tackle protectionist practices in third countries in relation to digital trade, while ensuring that trade agreements cannot be used to challenge the high level of protection guaranteed by the EU Charter of Fundamental Rights and EU legislation on the protection of personal data.

The EDPS understands that the negotiating directives and the horizontal provisions allow, in justified cases, measures requiring controllers or processors to store personal data in the EU/EEA. The EDPS recommends expressly clarifying that the negotiated rules will not prevent the EU or Member States from adopting the same measures. To access the Opinion in full, click here.