Schrems

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Companies have three months to prepare to use the latest standard contractual clauses for new data transfers, and 18 months to migrate existing arrangements.

By Gail Crawford, Fiona Maclean, Danielle van der Merwe, and Amy Smyth

On 4 June 2021, the European Commission released its much-anticipated final Implementing Decision containing the new standard contractual clauses (SCCs) for the transfer of personal data to third countries, which will enter into effect on 27 June 2021. Organisations may continue to use the existing SCCs until 27 September 2021, after which time the new SCCs must be used for relevant new data transfers. Organisations have an 18-month grace period (until 27 December 2022) during which they must migrate any existing SCC arrangements to the new SCCs.

The European Commission has published draft updated standard contractual clauses in light of the Schrems II decision.

By Gail Crawford, Ian Felstead, Fiona Maclean, Serrin Turner, Tim Wybitul, Victoria Wan, and Amy Smyth

On 12 November 2020, the European Commission (the Commission) published a draft implementing decision, annexing a draft set of updated standard contractual clauses (SCCs) for the transfer of personal data from the European Union to third countries (the New SCCs). The New SCCs were published two days after the European Data Protection Board (EDPB) released its draft recommendations on supplementary measures (the Recommendations). (For more information, see Latham’s blog post The EDPB’s Draft Data Transfer Guidance Following Schrems II — A Close Look.)

In the New SCCs, the Commission has substantially updated the SCC terms. The New SCCs provide for new types of data transfer (i.e., processor-to-processor and processor-to-controller transfers, in addition to the controller-to-controller and controller-to-processor transfers covered in the current SCCs) and, to a limited extent, address matters arising from the CJEU Schrems II decision.

The EDPB takes a strict approach in its recent guidance on international data transfers following Schrems II, posing a difficult challenge for businesses.

By Gail Crawford, Ian Felstead, Fiona Maclean, Serrin Turner, Tim Wybitul, Victoria Wan and Amy Smyth

On 10 November, the European Data Protection Board (EDPB) released its much anticipated draft guidance on international personal data transfers (the Guidance) in the wake of the CJEU Schrems II decision. The EDPB simultaneously issued updated recommendations on the European Essential Guarantees for surveillance measures, which are referred to in the Guidance. The Guidance sets out the EDPB’s proposed step-by-step process for data controllers or data processors that export personal data outlining how to assess their data transfers and implement General Data Protection Regulation (GDPR)-compliant mechanisms to protect data flows. One day later, the European Commission released draft updated Standard Contractual Clauses (SCCs) for the transfer of personal data. The draft updated SCCS are explicitly designed to address Schrems II requirements, and cross-refer extensively to the Guidance in the draft implementing decision. —

Swiss companies are advised to take additional measures when transferring personal data from Switzerland to the US.

By Gail E. Crawford, Fiona M. Maclean, and Amy Smyth

On 8 September 2020, the Swiss data protection authority, Adrian Lobsiger (the Federal Data Protection and Information Commissioner, FDPIC), concluded in his annual review that the Swiss-US Privacy Shield does not provide an adequate level of protection for personal data transfer from Switzerland to the US pursuant to the Swiss Federal Act on Data Protection (FADP). Mirroring the Court of Justice in the European Union’s (CJEU’s) findings in the recent Schrems II decision, the FDPIC also concludes that the standard contractual clauses (SCCs), and binding corporate rules (BCRs) (as applied in Switzerland), may not provide for adequate protection for transfers to the US or other third countries.

By Gail Crawford and Calum Docherty

On October 3, 2017, the Irish High Court announced that it will make a reference to the Court of Justice of the European Union (CJEU) for a preliminary ruling on the validity of the Standard Contractual Clauses, which allow companies in the European Economic Area (EEA) to transfer personal data outside of the EEA. In doing so, the Irish High Court acknowledged that, “there are well founded grounds for believing that the [Standard Contractual Clauses] are invalid,” but clarified that this was a question of EU law for the CJEU to decide.

What happened in the case?

Maximillian Schrems (an Austrian privacy campaigner who, in 2015, led a case that struck down the EU-US Privacy Shield’s forerunner, Safe Harbor) has a Facebook account. Schrems complained to the Irish Data Protection Commissioner (DPC) that Facebook Ireland Limited (Facebook Ireland) transferred his data to its US-parent, Facebook Inc. (Facebook US) for further processing.

In order to transfer personal data to a third country outside of the EEA, that third country (in this case, the US) should offer guarantees ensuring an adequate level of protection for personal data essentially equivalent to the level of protection ensured within the EEA. The European Commission (EC) has not considered the US to provide this adequate level of protection for personal data, so companies that wish to transfer data must rely on other data transfer mechanisms, including the Standard Contractual Clauses.

By Brian Meenagh

On October 26, 2015, Raja Al Mazrouei, the Commissioner for Data Protection for the Dubai International Financial Centre (the DIFC), issued guidance on the adequacy of US Safe Harbor for the purpose of exporting personal data from the DIFC. The guidance is significant for organisations that transfer personal data from the DIFC to the US and such organisations should urgently review the basis upon which they transfer personal data from the DIFC to the US to ensure that they continue to comply with the DIFC Data Protection Law (No 1 of 2007).

The guidance follows the decision of the European Court of Justice (the ECJ) in Case C-362/14 – Maximillian Schrems v Data Protection Commissioner 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.

The key message from the guidance is that:

“the invalidation of the Adequacy Decision by the ECJ provides cause for the Commissioner to reconsider the adequacy status previously afforded under the Law to US Safe Harbor Recipients. However, the Commissioner also understands that there are ongoing negotiations between Europe and US authorities towards an improved Safe Harbor framework and that these negotiations are well advanced.