EU Data Protection Directive
Subscribe to EU Data Protection Directive's Posts

Court of Justice of the European Union Says Safe Harbor Is No Longer Safe

Earlier today, the Court of Justice of the European Union (CJEU) announced its determination that the U.S.-EU Safe Harbor program is no longer a “safe” (i.e., legally valid) means for transferring personal data of EU residents from the European Union to the United States.

The CJEU determined that the European Commission’s 2000 decision (Safe Harbor Decision) validating the Safe Harbor program did not and “cannot eliminate or even reduce the powers” available to the data protection authority (DPA) of each EU member country. Specifically, the CJEU opinion states that a DPA can determine for itself whether the Safe Harbor program provides an “adequate” level of personal data protection (i.e., “a level of protection of fundamental rights and freedoms that is essentially equivalent to that guaranteed within the European Union” as required by the EU Data Protection Directive (95/46/EC)).

The CJEU based its decision invalidating that Safe Harbor opinion in part on the determination that the U.S. government conducts “indiscriminate surveillance and interception carried out … on a large scale”.

The plaintiff in the case that gave rise to the CJEU opinion, Maximilian Schrems (see background below), issued his first public statement praising the CJEU for a decision that “clarifies that mass surveillance violates our fundamental rights.”

Schrems also made reference to the need for “reasonable legal redress,” referring to the U.S. Congress’ Judicial Redress Act of 2015. The Judicial Redress Act, which has bi-partisan support, would allow EU residents to bring civil actions in U.S. courts to address “unlawful disclosures of records maintained by an [U.S. government] agency.

Edward Snowden also hit the Twittersphere with “Congratulations, @MaxSchrems. You’ve changed the world for the better.”

Background

Today’s CJEU opinion invalidating the Safe Harbor program follows on the September 23, 2015, opinion from the advocate general (AG) to the CJEU in connection with Maximilian Schrems vs. Data Protection Commissioner.

In June 2013, Maximilian Schrems, an Austrian student, filed a complaint with the Irish DPA. Schrems’ complaint related to the transfer of his personal data collected through his use of Facebook. Schrems’ Facebook data was transferred by Facebook Ireland to Facebook USA under the Safe Harbor program. The core claim in Schrems’ complaint is that the Safe Harbor program did not adequately protect his personal data, because Facebook USA is subject to U.S. government surveillance under the PRISM program.

The Irish DPA rejected Schrems’ complaint because Facebook was certified under the Safe Harbor Program. Schrems appealed to the High Court of Ireland, arguing that the Irish (or any other country’s) DPA has a duty to protect EU citizens against privacy violations, like access to their personal data as part of U.S. government surveillance. Since Schrems’ appeal relates to EU law (not solely Irish law), the Irish High Court referred Schrems’ appeal [...]

Continue Reading




Article 29 Working Party Adopts Procedure on Approval of Model Clauses

On 26 November 2014, the Article 29 Working Party adopted a working document on establishing a cooperation procedure for issuing common opinions on whether contractual clauses are compliant with the European Commission’s Model Clauses (Model Clauses).

The working document establishes the procedure in which companies wishing to use identical contractual clauses in different Member States for transfers of personal data outside the European Economic Area (EEA) are able to obtain a coordinated position from the relevant Data Protection Authorities (DPA) on the proposed contracts, without the need to approach each relevant DPA individually for approval.

Background

Model Clauses represent one of the ways that a data controller can overcome the general prohibition contained in the EU Data Protection Directive (95/46/EC) on cross-border transfers of personal data to countries outside the EEA that do not offer adequate levels of data protection.  The Model Clauses are intended to be used without amendment – although some divergence, e.g., through the use of additional clauses having no impact on the overall compliance of the Model clauses adopted, may be acceptable.

Company groups in Europe often use identical contractual clauses in different jurisdictions for the purposes of transfers out of the EEA.  However, differing implementation of the Data Protection Directive between Member States has resulted in the situation whereby some jurisdictions require DPA approval of the Model Clauses used (such as Austria, Denmark, France and Spain), whether used with or without amendment, whereas other jurisdictions do not require such DPA approval where the Model Clauses are used without amendment.  The result of the above is that it may be possible that identical contracts using the Model Clauses with only minor amendment are considered compliant by a DPA in one jurisdiction but not in others.

According to the Working Party, the purpose of this working document is to create a procedure allowing companies to obtain a coordinated position from the relevant DPAs when using identical contractual clauses based on the Model Clauses with minor amendment, in particular as to whether the contractual clauses are compliant with the Model Clauses.

The Process

Should a company wish to know whether its contract is compliant with the Model Clauses, under the proposed cooperation procedure, it will first need to ask the DPA it believes is entitled to act as the lead DPA to launch the EU cooperation procedure.

The company will then need to provide the lead DPA a copy of the contract, indicating the references to the Model Clauses together with any divergences and additional clauses, as well a list of EEA countries from which the company will be carrying out the transfers.

The Lead DPA

The Working Party has suggested that the company should choose the lead DPA from a Member State in which the transfers will take place and it will be for the company to justify why the DPA should be considered the lead.  According to the Working Party, the following criteria should be considered by the company:

  1. The location from which the contractual [...]

    Continue Reading



STAY CONNECTED

TOPICS

ARCHIVES