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The end of personal data transfers to the US under the Safe Harbour scheme

On 6 October, 2015, the Court of Justice of the European Union (CJEU) declared the Commission´s US Safe Harbor Decision invalid. This has caused considerable complications for any company that relied on the Safe Harbor to, for example, transfer customer data to the United States or used cloud services whose providers have their servers in the US. 

Under the Safe Harbor scheme companies could freely transfer personal data form the European Union to companies and organizations that voluntarily followed privacy protection principles and were listed on the Safe Harbor List. Numerous companies, including Facebook, Google and MasterCard, relied on the Safe Harbor. The decision is a reaction to the revelations of Edward Snowden, who published information about the US security services´ massive global monitoring of telephone and electronic communication.

CJEU based its decision on two facts in particular. First, the US law under which public authorities have general access to the content of electronic communications interferes with the fundamental right to privacy. Second, in the US there is no effective legal protection against such interference. 

In addition, CJEU stated that the existence of a Commission decision declaring that a third country ensures an adequate level of protection of personal data does not eliminate the power of national personal data protection authorities to independently examine whether data transfers to such third country are legal. In practice, this could lead to a disunited approach by national authorities with respect to personal data transfers to third counties. 

Mgr. Eva Bajakova, Junior Associate (eva.bajakova@randalegal.com)

Mgr. Matyas Kuzela, Senior Associate (matyas.kuzela@randalegal.com)

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