Tag: CJEU

Advocate General releases opinion on the validity of SCCs in case of Third Country Transfers

19. December 2019

Today, Thursday 19 of December, the European Court of Justice’s (CJEU) Advocate General Henrik Saugmandsgaard Øe released his opinion on the validity of Standard Contractual Clauses (SCCs) in cases of personal data transfers to processors situated in third countries.

The background of the case, on which the opinion builds on, originates in the proceedings initiated by Mr. Maximillian Schrems, where he stepped up against Facebook’s business practice of transferring the personal data of its European subscribers to servers located in the United States. The case (Schrems I) led the CJEU on October 6, 2015, to invalidate the Safe Harbor arrangement, which up to that point governed data transfers between the EU and the U.S.A.

Following the ruling, Mr. Schrems decided to challenge the transfers performed on the basis of the EU SCCs, the alternative mechanism Facebook has chosen to rely on to legitimize its EU-U.S. data flows, on the basis of similar arguments to those raised in the Schrems I case. The Irish DPA brought proceedings before the Irish High Court, which referred 11 questions to the CJEU for a preliminary ruling, the Schrems II case.

In the newly published opinion, the Advocate General validates the established SCCs in case of a commercial transfer, despite the possibility of public authorities in the third country processing the personal data for national security reasons. Furthermore, the Advocate General states that the continuity of the high level of protection is not only guaranteed by the adequacy decision of the court, but just as well by the contractual safeguards which the exporter has in place that need to match that level of protection. Therefore, the SCCs represent a general mechanism applicable to transfers, no matter the third country and its adequacy of protection. In addition, and in light of the Charter, there is an obligation for the controller as well as the supervisory authority to suspend any third country transfer if, because of a conflict between the SCCs and the laws in the third country, the SCCs cannot be complied with.

In the end, the Advocate General also clarified that the EU-U.S. Privacy Shield decision of 12 July 2016 is not part of the current proceedings, since those only cover the SCCs under Decision 2010/87, taking the questions of the validity of the Privacy Shield off the table.

While the Advocate General’s opinion is not binding, it represents the suggestion of a legal solution for cases for which the CJEU is responsible. However, the CJEU’s decision on the matter is not expected until early 2020, setting the curiosity on the outcome of the case high.

Advocate General’s opinion on “Schrems II” is delayed

11. December 2019

The Court of Justice of the European Union (CJEU) Advocate General’s opinion in the case C-311/18 (‘Facebook Ireland and Schrems’) will be released on December 19, 2019. Originally, the CJEU announced that the opinion of the Advocate General in this case, Henrik Saugmandsgaard Øe, would be released on December 12, 2019. The CJEU did not provide a reason for this delay.

The prominent case deals with the complaint to the Irish Data Protection Commission (DPC) by privacy activist and lawyer Maximilian Schrems and the transfer of his personal data from Facebook Ireland Ltd. to Facebook Inc. in the U.S. under the European Commission’s controller-to-processor Standard Contractual Clauses (SCCs).

Perhaps, the most consequential question that the High Court of Ireland set before the CJEU is whether the transfers of personal data from the EU to the U.S. under the SCCs violate the rights of the individuals under Articles 7 and/or 8 of the Charter of Fundamental Rights of the European Union (Question No. 4). The decision of the CJEU in “Schrems II” will also have ramifications on the parallel case T-738/16 (‘La Quadrature du net and others’). The latter case poses the question whether the EU-U.S. Privacy Shield for data transfers from the EU to the U.S. protects the rights of EU individuals sufficiently. If it does not, the European Commission would face a “Safe Harbor”-déjà vu after approving of the new Privacy Shield in its adequacy decision from 2016.

The CJEU is not bound to the opinion of the Advocate General (AG), but in some cases, the AG’s opinion may be a weighty indicator of the CJEU’s final ruling. The final decision by the Court is expected in early 2020.

CJEU rules pre-checked Cookie consent invalid

2. October 2019

The Court of Justice of the European Union (CJEU) ruled on Tuesday, October 1rst, that storing Cookies on internet users’ devices requires active consent. This decision concerns the implementation of widely spread pre-checked boxes, which has been decided to be insufficient to fulfill the requirements of a lawful consent under the General Data Protection Regulation (GDPR).

The case to be decided concerned a lottery for advertizing purposes initiated by Planet49 GmbH. During the participation process internet users were confronted with two information texts and corresponding checkboxes. Within the first information text the users were asked to agree to be contacted by other companies for promotional offers, by ticking the respective checkbox. The second information text required the user to consent to the installation of Cookies on their devices, while the respective checkbox had already been pre-checked. Therefore users would have needed to uncheck the checkbox if they did not agree to give their consent accordingly (Opt-out).

The Federal Court of Justice in Germany raised and referred their questions to the CJEU regarding whether such a process of obtaining consent could be lawful under the relevant EU jurisprudence, in particular whether valid consent could have been obtained for the storage of information and Cookies on users devices, in case of such mechanisms.

Answering the questions, the CJEU decided, referring to the relevant provisions of Directive 95/46 and the GDPR that require an active behaviour of the user, that pre-ticked boxes cannot constitute a valid consent. Furthermore, in a statement following the decision, the CJEU clarified that consent must be specific, and that users should be informed about the storage period of the Cookies, as well as about third parties accessing users’ information. The Court also said that the “decision is unaffected by whether or not the information stored or accessed on the user’s equipment is personal data.”

In consequence of the decision, it is very likely that at least half of all websites that fall into the scope of the GDPR will need to consider adjustments of their Cookie Banners and, if applicable, procedures for obtaining consent with regard to performance-related and marketing and advertising Cookies in order to comply with the CJEU’s view on how to handle Cookie usage under the current data protection law.

Cookies, in general, are small files which are sent to and stored in the browser of a terminal device as part of the website user’s visit on a website. In case of performance-related and marketing and advertising Cookies, the website provider can then access the information that such Cookies collected about the user when visiting the website on a further occasion, in order to, e.g., facilitate navigation on the internet or transactions, or to collect information about user behaviour.

Following the new CJEU decision, there are multiple possibilities to ensure a GDPR compliant way to receive users’ active consent. In any case it is absolutely necessary to give the user the possibility of actively checking the boxes themselves. This means that pre-ticked boxes are no longer a possibility.

In regard to the obligation of the website controller to provide the user with particular information about the storage period and third party access, a possible way would be to include a passage about Cookie information within the website’s Privacy Policy. Another would be to include all the necessary information under a seperate tab on the website containing a Cookie Policy. Furthermore, this information needs to be easily accessible by the user prior to giving consent, either by including the information directly within the Cookie Banner or by providing a link therein.

As there are various different options depending on the types of the used Cookies, and due to the clarification made by the CJEU, it is recommended to review the Cookie activities on websites and the corresponding procedures of informing about those activities and obtaining consent via the Cookie Banner.

Irish High Court refers Facebook case to the CJEU

6. October 2017

On October 3rd 2017, the Irish High Court publicised it will refer the Facebook case to the Court of Justice of the European Union (CJEU). The lawsuit is based on a complaint to the Irish Data Protection Commissioner filed by Max Schrems, an Austrian lawyer and privacy activist. Schrems was also involved in the case against Facebook resulting in the CJEU’s landmark decision declaring the Commission’s US Safe Harbour Decision invalid.

In his new complaint, Schrems is challenging the data transfers of Faceook to the US on the basis of the “Model Contracts for the transfer of personal data to third countries”, also known as standard contractual clauses (SCCs). Schrems himself said, “In simple terms, US law requires Facebook to help the NSA with mass surveillance and EU law prohibits just that.”

In contrast to Schrems, the Irish Data Protection Commissioner challenged the validity of the SCCs in general and not only in matters of Facebook. Due to the importance of the case, the Irish High Court referred it to the CJEU. The CJEU will now have to decide whether data transfers to the US are valid on the basis of the Commission’s Model Contracts. It remains to be seen what the CJEU will decide and if its decision will have an impact on the Privacy Shield framework.