In a document ponderously entitled ‘COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the Transfer of Personal Data from the EU to the United States of America under Directive 95/46/EC following the Judgment by the Court of Justice in Case C-362/14 (Schrems)’, which can be read in full here. The document seeks to provide an overview of the alternative tools available for transatlantic data transfers in the absence of an adequacy decision.
The Communication reminds readers of the possible use of contractual solutions, intra-group transfers and the various applicable derogations, including unambiguous prior consent.
The Communication also seeks to put the Schrems judgment into context and emphasises the limits on its applicability.
The ‘Conclusion’ opens with the following text:
‘As confirmed by the Article 29 Working Party, alternative tools authorising data flows can still be used by companies for lawful data transfers to third countries like the United States. However, the Commission considers that a renewed and sound framework for transfers of personal data to the United States remains a key priority. Such a framework is the most comprehensive solution for ensuring effective continuity of the protection of personal data of European citizens when they are transferred to the United States. It also provides the best solution for transatlantic trade as it offers a simpler, less burdensome and therefore less costly transfer mechanism, in particular for SMEs.
Already in 2013, the Commission started negotiations with the U.S. government on a new arrangement for transatlantic data transfers based on its 13 recommendations50. There has been considerable progress in bringing the views of both sides together, for example on stronger monitoring and enforcement of the Safe Harbour Privacy Principles by, respectively, the U.S. Department of Commerce and the U.S. Federal Trade Commission, more transparency for consumers as to their data protection rights, easier and cheaper redress possibilities in case of complaints, and clearer rules on onward transfers from Safe Harbour companies to non-Safe Harbour companies (e.g., for processing or sub-processing purposes). Now that the Safe Harbour Decision has been declared invalid, the Commission has intensified the talks with the U.S. government to ensure that the legal requirements formulated by the Court are complied with. The objective of the Commission is to conclude these discussions and achieve this objective in three months. ‘
Whatever one’s view of some dubious assertions within the Communication, the efficacy of the Commission’s Communication might be questioned since the document includes in its introduction a very wide statement of its limitations:
‘The present Communication is without prejudice to the powers and duty of the DPAs to examine the lawfulness of such transfers in full independence8. It does not lay down any binding rules and fully respects the powers of national courts to interpret the applicable law and, where necessary, to make a reference to the Court of Justice for a preliminary ruling. Nor can this Communication form the basis for any individual or collective legal entitlement or claim.’
