By Ulrich Wuermeling

On October 26, the European Commissioner Věra Jourová addressed the Parliament Committee on Civil Liberties, Justice and Home Affairs to discuss the consequences of the Schrems Judgment of the Court of Justice of the European Union (ECJ).

Jourová commented on the status of the negotiations with the US to find a new solution for data transfers: “There is agreement on these matters in principle, but we are still discussing how to ensure that these commitments are binding enough to fully meet the requirements of the Court.” She plans to visit the US mid-November and hopes to make further progress on a new arrangement with the US.

The ECJ decision requires that there are sufficient limitations and safeguards in place to prevent access or use of personal data on a generalized basis and to ensure that there is sufficient judicial control over such activities. These safeguards and controls would need to be available to European data subjects. Neither the reforms advanced in the US Freedom Act nor the Obama Administration’s Presidential Policy Directive/PPD-28 will satisfy these requirements of the ECJ decision.

Jourová believes that the signing the Judicial Redress Act (in the form passed by the House of Representatives) would be an “important step”, but would still need careful analysis in light of the ECJ Judgment. The essential terms of the Judicial Redress Act (extending Privacy Act protections to EU citizens, with regard to non-national security data such as educational or criminal records held by the US Government) have been under consideration in one form or another for decades. Passing the law would be a constructive step forward, but does not meet or address the ECJ Judgment concerns about access or control in the intelligence arena.

Jourová announced that the Commission will “soon” issue an explanatory communication on the consequences of the Schrems ruling setting out guidance on international data transfers. The Commission intents to keep the communication in line with the Article 29 Working Party Statement, but it will be interesting to see whether it will be.