Specialist Lawyer Comments On Landmark Ruling

Following the earlier decision of the ECJ in the Max Schrems case, the European Commission held an emergency meeting on Tuesday 6 October.

It has acknowledged that further guidance is required urgently on what businesses should do now and said that it intends to produce clear guidance.  However, the immediate challenge is that to do so they require the co-operation of data protection authorities in all 28 member states.  The need to agree a consistent approach means that guidance is not likely to be produced quickly. 

Pending release of the guidance the Commission has stressed that there are other mechanisms which can be used to legitimise the transfer including the use of model contractual clauses.  Some cloud service providers have already started to issue documents to incorporate the model clauses into their agreements with users.

Expert Opinion

“The Commission’s immediate solution to the invalidation of Safe Harbour is to recommend that businesses use the model contractual clauses. This doesn’t work logically. If Safe Harbour is invalid because the US security services can access the data, it is hard to see how using model contractual clauses will be a long term solution. Surely the security services will also be able to access data provided under the clauses.” Joanne Bone - Partner

The Commission has also said that it intends to continue with ongoing discussions with the US on a “Safer Safe Harbor” scheme.  These discussions now have added urgency.