DPC sends draft decision on Meta’s EU-US data transfers to other European DPAs
On July 7, 2022, it became known that the Irish Data Protection Commission (DPC) had forwarded a draft decision concerning Meta’s EU-US data transfers to other European DPAs for consultation. Having to respect a four-week-period, European DPAs may comment on this draft or formulate objections to it. In such an event, the DPC would be given an additional month to respond to the objections raised (article 60 GDPR).
According to information available to politico, the DPC is intending to halt Meta’s EU-US transfer. The DPC is said to have concluded in its out of “own volition” draft decision that Meta can no longer rely on the SCCs when it transfers their user’s personal data to US based servers. In other words, even though Meta has implemented the EU’s SSCs, it cannot be ruled out that US intelligence services may gain access to personal data of data subjects using facebook, instagram and other meta products.
Following the striking down of both, the Safe Harbour Agreement in 2015 and the EU-US Privacy Shield in 2020 by the Court of Justice of the European Union, this draft decision seems to question the legality and compatibility of EU-US data transfers with the GDPR for a third time.
In this context it is worthy to consider a statement Meta made in its annual report to the United States Securities and Exchange Commission (SEC):
“If a new transatlantic data transfer framework is not adopted and we are unable to continue to rely on SCCs or rely upon other alternative means of data transfers from Europe to the United States, we will likely be unable to offer a number of our most significant products and services, including Facebook and Instagram, in Europe, which would materially and adversely affect our business, financial condition, and results of operations.”
Despite the possibility of a halt of Meta’s EU-US data transfers, there is reason to believe that this DPC initiated procedure will be continued in the future and that it will go beyond the previously mentioned four-weeks timeline. “We expect other DPAs to issue objections, as some major issues are not dealt with in the DPC’s draft. This will lead to another draft and then a vote”, says NOYB’s Max Schrems who filed the original complaint to the DPC. Hence, it seems rather unlikely that an instant stop of an EU-US transfer will occur. Instead, we could rather expect article 65 GDPR to be triggered meaning that the EDPB would be required to issue a final decision, including a vote, on the matter.
With no concrete EU-US transfer agreement in sight and the ongoing uncertainty on whether the DPC will eventually succeed with its draft decision, this matter continues to be of big interest.
