In the dynamic realm of data protection, transferring information from the EU to Ukraine presents distinctive challenges, demanding a thoughtful approach.
- Ukraine’s Position in Data Transfers: Ukraine, while granted a candidate status by the European Council, is not currently an EU member. This status, combined with its exclusion from the European Commission’s list of nations with adequate data protection, introduces complexities for data exporters.
- The Role of Standard Contractual Clauses (SCCs): A common option for EU data exporters is the use of SCCs. However, ensuring their effectiveness requires a comprehensive Transfer Impact Assessment (TIA). This aligns with the essential guidelines arising from the European Court of Justice decisions, emphasizing the need for a thorough evaluation.
- Conducting a TIA for Ukraine: conforming to EDPB recommendations, a TIA for Ukraine involves a detailed analysis:
- Scrutinize the specifics of the data transfer, understanding the nature and sensitivity of the information.
- Confirm the existence of a data transfer involving an EU data exporter, a Ukrainian data importer, and the actual availability of personal data to the Ukrainian party.
- Select and implement an appropriate transfer mechanism, with a focus on SCCs for the purpose of this discussion.
- Evaluating Ukrainian Laws and Practices: Before the conflict, Ukrainian lawyers had not claimed an essentially equivalent level of personal data protection compared to the EU. However, SCCs remained enforceable. Examining the legal landscape:
- Highlight positive aspects such as Ukraine’s adherence to the European Convention on Human Rights, a separate Data Protection Law, and an existing data protection authority.
- Acknowledge challenges, including potential gaps in personal data access restrictions and electronic information storage.
- Ongoing Vigilance: Continuous monitoring of legal developments is essential. Data exporters must stay aligned to changes in Ukrainian laws and practices, ensuring the ongoing effectiveness of chosen mechanisms.
Learn more in our recent in our recent PrivacyEspresso episode with Oksana Zadniprovska, Partner at Axon Partners, our Ukrainian law firm member. Gain deeper insights into the intricacies of data protection and cross-border transfers.