Tag: additional measures

EDPS considers Privacy Shield replacement unlikely for a while

18. December 2020

The data transfer agreements between the EU and the USA, namely Safe Harbor and its successor Privacy Shield, have suffered a hard fate for years. Both have been declared invalid by the European Court of Justice (CJEU) in the course of proceedings initiated by Austrian lawyer and privacy activist Max Schrems against Facebook. In either case, the court came to the conclusion that the agreements did not meet the requirements to guarantee equivalent data protection standards and thus violated Europeans’ fundamental rights due to data transfer to US law enforcement agencies enabled by US surveillance laws.

The judgement marking the end of the EU-US Privacy Shield (“Schrems II”) has a huge impact on EU companies doing business with the USA, which are now expected to rely on Standard Contractual Clauses (SCCs). However, the CJEU tightened the requirements for the SCCs. When using them in the future, companies have to determine whether there is an adequate level of data protection in the third country. Therefore, in particular cases, there may need to be taken additional measures to ensure a level of protection that is essentially the same as in the EU.

Despite this, companies were hoping for a new transatlantic data transfer pact. Though, the European Data Protection Supervisor (EDPS) Wojciech Wiewiórowski expressed doubts on an agreement in the near future:

I don’t expect a new solution instead of Privacy Shield in the space of weeks, and probably not even months, and so we have to be ready that the system without a Privacy Shield like solution will last for a while.

He justified his skepticism with the incoming Biden administration, since it may have other priorities than possible changes in the American national security laws. An agreement upon a new data transfer mechanism would admittedly depend on leveling US national security laws with EU fundamental rights.

With that in mind, the EU does not remain inactive. It is also trying to devise different ways to maintain its data transfers with the rest of the world. In this regard, the EDPS appreciated European Commission’s proposed revisions to SCCs, which take into consideration the provisions laid down in CJEU’s judgement “Schrems II”.

The proposed Standard Contractual Clauses look very promising and they are already introducing many thoughts given by the data protection authorities.