You say Safe Harbor, we say Safe Harbour, let’s call the whole thing off?

You say Safe Harbor, we say Safe Harbour, let’s call the whole thing off?
 Schrems v Data Protection Commissioner: C-362/14 [2015] All ER (D) 34 (Oct)
The Court of Justice of the European Union recently delivered a landmark judgment, essentially invalidating the existing Safe Harbor framework agreement between the EU and the US. Mark Watts, partner at Bristows, along with associate Hannah Crowther, consider the implications of this decision.
What is the significance of the CJEU's ruling?
The Safe Harbor Framework, agreed in 2000, permitted the transfer of personal data from the EU to the US, provided the US recipient of the data was registered with the Safe Harbor scheme. The European Commission had issued a decision that using Safe Harbor provided an ‘adequate level for protection’ for the data, as required by the Data Protection Directive, art 25. After an Austrian student, Max Schrems, challenged Facebook’s transfers under Safe Harbor, on 6 October 2015 the CJEU ruled that the Commission’s decision was invalid. As a consequence, any transfers of personal data to the US which are reliant on Safe Harbor alone (and not on any of the other mechanisms or derogations) are unlawful.
On what basis did the CJEU make its ruling?

The CJEU declared the Commission’s adequacy decision invalid on two grounds:

  • that the Commission did not, in fact, state that the Safe Harbor framework ensured an adequate level protection, by reason of the US’s domestic law or the international commitments it has entered into (as the Commission was required to do under

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