Developments EU

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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.

By Ulrich Wuermeling

An early Position Paper of the German data protection authority of Schleswig-Holstein on the Schrems Judgment of the Court of Justice of the European Union (ECJ) gave little hope for practical alternatives to Safe Harbor. On October 26, all German data protection authorities published a more reasoned joint Statement that follows the approach taken by the Article 29 Working Party. It still includes some surprises in the details, but also offers hope for Model Contracts to be able to serve at least as an interim solution.

The Statement of the German data protection authorities (GDPA) starts with the unsurprising conclusion that data transfers cannot rely on the Safe Harbor Decision anymore. It continues to mention that the Schrems Judgment also puts data transfers under other instruments (like BCRs or Model Contracts) in question. The GDPAs announcement that they will not approve new BCRs or contractual solutions for data transfers in the US and have also requested that the German government allow data protection authorities to bring claims to courts (as required by the ECJ in the Schrems Judgment). The Statement of the GDPAs is short and obviously a compromise between differing views.

By Gail Crawford, Ulrich Wuermeling and Jennifer Archie

The so called Article 29 Working Party met on October 15, 2015 to discuss the consequences of the Schrems Judgment of the European Court of Justice (ECJ). On October 16, 2015, the Working Party published a Statement summarizing their initial conclusions. The Working Party includes representatives of the national data protection authorities of the EU Member States, the European Data Protection Supervisor and the European Commission.

The Working Party states that data transfers made under Safe Harbor are unlawful following the Judgment. However, enforcement actions of the national data protection authorities shall only take place, if no other solution is found by the end of January 2016. In the opinion of the Working Party, such solution could include an intergovernmental agreement between the EU and US with reference to a revised Safe Harbor framework. It will be seen whether the US government will be able to agree to limit law enforcement access and to provide remedies for data subjects as required by the European Court of Justice, to the satisfaction of the EU. Due to this uncertainty, businesses will not be able to wait until January 2016, because they will not be able to implement alternative solutions in time, if the governments do not agree.

By Jennifer Archie, Gail Crawford and Ulrich Wuermeling

On October 6, the European Court of Justice ruled that Decision 2000/520 of the European Commission, which stated that Safe Harbor-certified US companies provide adequate protection for personal data transferred to them from the EU (the Safe Harbor Adequacy Decision), is invalid (Case C-362/14 – Maximillian Schrems v [Irish] Data Protection Commissioner). The judgment is immediately effective without a grace period. The Data Protection Authorities of the EU Member States (Article 29 Working Party) have already scheduled a working group emergency meeting to discuss the consequences of the judgment, but it is unlikely that the meeting will lead to a simple solution for the 4,000+ US companies who rely on Safe Harbor. The European Commission has also published a press release with a short set of guidelines.

The Reasoning of the Court

In its judgment of 6 October 2015, the Court stated that

  • “legislation permitting the public authorities to have access on a generalized basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter”

By Ulrich Wuermeling

On September 23, the European Court of Justice heard the case which will determine whether US companies can rely on Safe Harbor as a measure to provide adequate privacy protection for personal data imported from the European Union. As of today, more than 4000 US companies have notified the Department of Commerce that they are currently compliant with Safe Harbor. According to the Opinion of Advocate General Yves Bot, however, Safe Harbor certification is not sufficient to comply with European data export requirements. It is not certain but likely that the European Court of Justice will follow the arguments of the Advocate General.

How should companies react on the Opinion of the Advocate General? For the time being, nothing changes. The Opinion is not the final judgment which can be expected before the end of this year. Meanwhile, Safe Harbor stays in place, unless the European Commission decides to suspend Safe Harbor under the political pressure caused by the release of the Opinion. Back in 1995, experts claimed that the European Data Protection Directive would put an end to international trade. The same might be claimed about the upcoming decision (or the proposed European Data Protection Regulation), but experience shows that solutions can be found. Hopefully, the Court will give the European Commission some time to remedy the issues.

This week the Court of Justice of the European Union (‘CJEU’) heard a case that could destabilise data flows between the US and EU under the EU-US Safe Harbor Decision. In Schrems v Data Protection Commissioner(C-362/14), the same court that last year approved the “right to be forgotten” online heard evidence about the adequacy of US data protection regulations for EU citizens’ data and considered whether recent revelations about the NSA and PRISM programmes should affect determinations…

A Stored Communications Act (SCA) search warrant case arising out of a New York federal  narcotics trafficking investigation is being closely watched by EU data protection authorities, privacy advocates, multinational internet service providers, and law enforcement, among others, as the  parties pursue an expedited appeal to the Second Circuit Court of Appeals. Captioned In re Search Warrant, No. 13 Mag. 2814, M9-150, the case involves  a U.S. law enforcement request for the contents of an Outlook.com email box,…

On July 17th, the Data Retention and Investigatory Powers Act (DRIPA) came into effect in the United Kingdom reinstating the Government’s powers to require communication providers to retain traffic data (also known as metadata) and enabling the Government to serve warrants to intercept communications data on companies outside of the United Kingdom to the extent they were providing services to UK users.  DRIPA became law following emergency “fast-tracked” procedures on the basis that its enactment was essential to ensure continued…

By Larry Cohen and Gail Crawford

While the popular press has been full of stories about the European Court of Justice’s (“ECJ”) ruling creating a “right to be forgotten” (ahead of the still pending Data Protection Regulation), we will focus on both the ruling as well as the specific questions referred to the ECJ that have far-reaching ramifications for global companies such as the test for applicability of national data protection laws. 

First, some background on the facts of the…

Recently Jan Philipp Albrecht, rapporteur for the Civil Liberties, Justice and Home Affairs (LIBE) Committee, the lead committee considering the proposed draft General Data Protection Regulation, published the committee’s suggested amendments to the original draft regulation.  The reports runs to over 200 pages and contains over 350 separate amendments.

Since the original draft regulation was published in January of last year, businesses, industry bodies and regulators have been lobbying the European Commission, Council and Parliament to try and change some…