Deepening Trade and Fundamental Rights? Harnessing Data Protection Rights in the Regulatory Cooperation Chapters of EU Trade Agreements

Abstract

The paper explores the descriptive and normative intersection of Data Protection rights and Regulatory Cooperation chapters in the new generation of EU Trade Agreements. While the EU has repeatedly refused to consider data protection as part of trade negotiations, it has sought deeper institutionalised forms of regulatory cooperation. The question then arises as to what extent data protection rights would come across with these mechanisms and the consequences on their protection. In a context of global trade requiring data to flow freely, regulatory cooperation has been advanced as a way to deal with regulatory divergences in data. How should the EU deal with global demands pooling data flows and regulatory cooperation? The paper finds that data protection emerges as a very much cross-cutting issue liable to be affected by Regulatory Cooperation activities. It is argued that the EU should acknowledge this state of play whereby data protection cannot be isolated or only elusively addressed. Instead, mechanisms should be secured so as to ensure that data protection, as a fundamental right, is not undermined, and is embedded and enhanced in the regulatory cooperation chapters.