Safe Harbor Invalidation – Article 29 Working Party Sets January 2016 Deadline

Posted by fgilbert on October 16th, 2015

The long awaited reaction of the Working party to the ruling of the Court of Justice of the European Union (CJEU) in the Schrems and Facebook case in now public. Late on October 15, the Article 29 Working Party published a statement outlining its first response to the landmark ruling. The Working Party’s statement summarizes the group’s evaluation of the first consequences to be drawn at European and national level.

The Working Party point out that the data protection authorities, EU institutions, Member States, and businesses are collectively responsible for finding sustainable solutions to implement the Court’s judgment. It stresses that businesses, in particular, should reflect on the eventual risks they take when transferring data to the United States, and should consider putting in place any legal and technical solutions in a timely manner to mitigate those risks and respect the EU data protection principles.

Transfers under Safe Harbor Unlawful

Regarding the practical consequences of the CJEU judgment, the Working Party states that it is clear that transfers from the European Union to the United States can no longer be framed based on Safe Harbor mechanism and “transfers that are still taking place under the Safe Harbor after the CJEU judgment are unlawful.”

Standard Clauses and Binding Corporate Rules

Until the Working Party has completed its analysis of the impact of the CJEU judgment on other transfer tools, data protection authorities will consider that Standard Contractual Clauses and Binding Corporate Rules can still be used. However, during this transition period, the Working Party warns that data protection authorities will continue to exercise their right to investigate particular cases, and to exercise their powers in order to protect individuals.

January 2016 Deadline

The Working Party’s press release sets a January 2016 deadline. If, by the end of January 2016, no appropriate solution is found with the US authorities and depending on the assessment of the transfer tools by the Working Party, EU data protection authorities may start taking all actions that they may deem necessary, including coordinated enforcement actions.

Massive Surveillance an issue

The activities of US law enforcement agencies remain of great concern to the Working Party. The Working Party points out that the question of massive and indiscriminate surveillance is a key element of the CJEU’s analysis. It believes that such surveillance is incompatible with the EU legal framework, and existing transfer tools are not the solution to this issue.

Intergovernmental Agreement Suggested

While progress has been made with the recent signature of the Umbrella Agreement and the ongoing negotiations regarding Safe Harbor 2.0, the Working Party believes that more needs to be done. A new Safe Harbor agreement would only a part of the solution; more is necessary.

The Working Party urges Member States and the European institutions to open discussions with US authorities in order to find political, legal and technical solutions enabling cross Atlantic data transfers that respect fundamental rights. In particular, it suggests that such solutions could be found through the negotiation of an intergovernmental agreement providing stronger guarantees to EU data subjects.

The Working Party identifies key points that should be addressed in these intergovernmental negotiations. In the Working Party’s opinion, these solutions should always be assisted by clear and binding mechanisms and include at least obligations on:

  • Oversight of access by public authorities;
  • Transparency;
  • Proportionality;
  • Redress mechanisms; and
  • Data protection rights.

Shared Responsibility

The Working Party views it as a shared responsibility between data protection authorities, EU institutions, Member States, and businesses to find sustainable solutions to implement the Court’s judgment. It states that, in the context of the CJEU judgment, businesses should reflect on the eventual risks they take when transferring data and should consider putting in place any legal and technical solutions in a timely manner to mitigate those risks and respect the EU data protection laws and principles.

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One Response to “Safe Harbor Invalidation – Article 29 Working Party Sets January 2016 Deadline”

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