Greetings from Berlin!
I’m sure you’ve seen the news: On Wednesday morning, the advocate general to Europe's highest court issued a key opinion that the surveillance of citizens' data by U.S. intelligence services is "mass" and "indiscriminate," and therefore, European national authorities are entitled to suspend the transfer of that data if there are concerns.
Should the official European Court of Justice (ECJ) ruling on the Schrems case, expected in the coming three months, confirm this opinion, there could be a major impact on how high-tech U.S. multinationals operating in Europe, and European firms with U.S. offices and business, handle the transfer of data to the U.S. The advocate general went so far as to recommend the ECJ invalidate the existing Safe Harbor rules, saying that EU fundamental rights to respect for private life and personal data protection were at risk. He was also critical of the European Commission for permitting ongoing data transfer under existing Safe Harbor provisions, despite its concerns over the use of data following revelations by U.S. National Security Agency whistleblower Edward Snowden.
The advocate general also called for greater rights for national data protection authorities (DPAs) to investigate complaints by EU citizens that their data protection and privacy rights are being breached. He was of the view that a Commission decision finding in favor of a third country’s declared level of protection on data transfer cannot eliminate or reduce national DPAs’ “independent” powers under the current directive on the processing of data. In short, the European Commission is not empowered to restrict national DPAs’ powers where there is a reasonable understanding that the transfer of personal data undermines the protection of EU citizens.
Although the opinion is nonbinding, the ECJ reflects the opinions of the advocate general in its final judgements about 85 percent of the time. The news is being received with mixed feelings in European capitals as well as in Washington, DC; EU-U.S. commercial data-sharing dealings face a major test and an anxious time ahead. The final verdict on this case could have far-reaching consequences for EU-U.S. diplomatic and trade relations, as well as ongoing talks on a transatlantic free-trade agreement.
We will need to wait and see how the ECJ will make its ruling; while the court is not bound to agree with the advocate general’s opinion, the advocate general’s influence is considerable in judicial matters. Another interesting aspect will be how national DPAs respond to the finding. What seems certain is that the Safe Harbor might not be so safe after all.
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