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EU privacy regulators took their first position on the Safe Harbor decision when negotiations on the TTIP agreement between the EU and the US reach a delicate stage.
The Article 29 Working Party issued its first statement after the landmark decision of European Court of Justice that invalidated the Safe Harbor principles for the transfer of personal data between the European Union and the United States.
The position of Article 29 Working Party
The EU privacy regulators stressed that it is absolutely essential to have a robust, collective and common position on the implementation of the Safe Harbor decision. The Article 29 Working Party emphasized that “massive and indiscriminate surveillance is a key element of the Court’s analysis“ and on this basis called on “the Member States and the European institutions to open discussions with US authorities in order to find political, legal and technical solutions enabling data transfers to the territory of the United States that respect fundamental rights.“.
What you shall do now on data transfers
But what is more important is that according to European privacy regulators in relation to personal data transfers between the EU and the US
“Standard Contractual Clauses and Binding Corporate Rules can still be used.“
Data protection authorities will still be able “to investigate particular cases, for instance on the basis of complaints, and to exercise their powers in order to protect individuals.“, but this is a very important clarification in the current situation of uncertainty especially after that a German privacy regulator had even challenged the possibility to rely on the EU model clauses.
However, EU privacy regulators also stressed – to avoid any unclarity on that point – that “transfers that are still taking place under the Safe Harbour decision after the CJEU judgment are unlawful.”
Privacy debates can impact the TTIP?
This position is taken at a crucial stage of the negotiations between the European Union and the United States on the Transatlantic Trade and Investment Partnershio (TTIP) aimed at reducing the barriers to trade between the EU and the US. The risk is that the Safe Habor decision might impact the outcome of the negotiations on TTIP that are expected to be closed shortly.
In a business where the transfer of personal data is becoming more and more crucial it is not a surprise that privacy related decisions such as the one of the European Court of Justice on the Safe Harbor principles might have also some economic and financial consequences. And for instance, the impact might be massive for technologies such as those of the Internet of Things which rely on the free flow of a very large amount of data.
We will see the outcome of the negotiations. Businesses can still rely on the EU model clauses on data transfers, but should start running an internal due diligence on how to minimize the risks of such decisions on their business.
