Safe Harbour and the European regulators

Posted on | by Timothy Pitt-Payne QC

On 6th October 2015 the CJEU declared the Commission’s Safe Harbor Decision invalid, in Case C-362/14 Schrems.  Since then, data protection specialists have discussed little else; and Panopticon has hosted comments by Chris Knight, Anya Proops, and Robin Hopkins.

How have EU data protection regulators responded to the judgment?

The ICO’s immediate response came in a statement from Deputy Commissioner David Smith.  This struck a careful and measured tone, emphasising that the Safe Harbour is not the only basis on which transfers to the US can be made, and referring to the ICO’s earlier guidance on the range of ways in which overseas transfers can be made.

On 16th October the Article 29 Working Party issued a statement taking a rather more combative line.  Here are the main points.

  1. The question of massive and indiscriminate surveillance (i.e. in the US) was a key element of the CJEU’s analysis. The Court’s judgment required that any adequacy analysis implied a broad analysis of the third country domestic laws and international commitments.
  1. The Working Party urgently called on Member States and European institutions to open discussions with the US authorities to find suitable solutions. The current negotiations around a new Safe Harbour could be part of the solution.
  1. Meanwhile the Working Party would continue its analysis of how the CJEU judgment affected other transfer tools. During this period Standard Contractual Clauses and Binding Corporate Rules could still be used.  If by the end of January 2016 no appropriate solution with the US had been found, the EU regulators would take “appropriate actions”.
  1. Transfers still taking place based on the Safe Harbour decision were unlawful.

There are a couple of key messages here.  One is that it seems doubtful that the Article 29 Working Party would regard an adequacy assessment by a data controller as being a proper basis for transfer to the US:  see point 1.  A second is that there is a hint that even standard clauses and BCRs might not be regarded a safe basis for transfer (see point 3): the answer will depend on the outcome of the Working Party’s further analysis of the implications of Schrems.