Schrems II Opinion issued by the Advocate General of the Court of Justice of the EU

In today’s opinion, delivered by Advocate General Henrik General Saugmandsgaard Øe of the Court of Justice of the EU, Standard Contractual Clauses (SCCs) have been declared valid.

SCCs are a mechanism used to transfer personal data outside the EEA where the country to which the data is being sent does not have an adequate level of protection for personal data. Where a controller wishes to transfer personal data to a country outside the EEA, it must comply with one of a number of mechanisms to ensure the protection of that data. One of those mechanisms is a system whereby the controller enters into a contract with the receiving entity in the third country and that contract contains Standard Contractual Clauses.  Those clauses were approved by the EU Commission in a decision of 2010. The idea is that the recipient of the data will be bound under the terms of its contract to treat the data appropriately. So even if the country to which the data is being sent doesn’t have appropriate mechanisms to protect personal data, the recipient may voluntarily agree to process the data in accordance with EU standards under an SCC contract.

Max Schrems argued that the Standard Contractual Clause mechanism did not effectively protect his personal data in the US, in light of the revelations by Edward Snowden. He had previously (successfully) made a similar argument in relation to another transfer mechanism, “safe harbour”.

The Advocate General found that the safeguards afforded by SCCs place an obligation on the data controller (and, ultimately the controller’s Supervisory Authority) to suspend or prohibit a transfer where there is a conflict between the SCC obligations and those imposed by the law of the country of destination. So, for example, if the US passed a law which significantly impacted on EU residents’ data rights, the controller, or ultimately the controller’s supervisory authority (in Ireland, the Data Protection Commission) would have to suspend the data transfers. In these circumstances, the Standard Contractual mechanism remains valid.

This is a non-binding opinion of the Advocate General. The Court of Justice will issue its opinion in 2020.

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