A European Court of Justice (ECJ) advocate general released his opinion September 23 in the matter of Maximillian Schrems v. Data Protection Commissioner, a case that questions the “adequacy” of the U.S.-EU Safe Harbor (Safe Harbor). The nonbinding opinion, which will now be considered by the full court in the coming months ruled: (1) that Safe Harbor is invalid, because it does not place proportionality limits on U.S. government national security agencies’ access to data, and (2) member state DPAs have the power to suspend transfers despite “adequacy” findings. Both findings, if adopted by the court, would cause dramatic disturbances in the U.S.-EU trade relationship, immediately affecting the data flows of over 4,400 companies and affecting the entire electronic world in Europe where citizens rely on the services of companies like Apple, Microsoft, and Google, who themselves rely on the “adequacy” finding of Safe Harbor.
A Safe Harbor renegotiation announcement is expected from the U.S. Department of Commerce and European Commission in the coming days. The renegotiated Safe Harbor terms could render the ECJ case moot, or at least insulate Safe Harbor from suspension.
For an in-depth analysis of the advocate general’s September 23 opinion, see our client alert on the matter.