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The judgement of the Court of Justice of the European Union (“CJEU”) in Schrems v. Data Protectio... more The judgement of the Court of Justice of the European Union (“CJEU”) in Schrems v. Data Protection Commissioner (“the Schrems Judgement”) was a landmark decision for EU data transfers. The Schrems Judgement invalidated the adequacy decision of the European Commission that the EU-US Safe Harbour arrangement provided an ‘adequate’ level of protection for the transfers of EU personal data. The Schrems Judgement also had a profound effect on the way an adequacy decision should be reached by the European Commission. However, before this judgement there were already signs that the Adequacy Decision process had underlying issues. Whether or not an Adequacy Decision is granted by the European Commission depends on numerous considerations ranging from political relations to the economic interests of the European Union. Consequently, this has resulted in an inconsistent application of what should be an objective and comparative analysis of a third country’s rules around privacy and protections provided to individuals.
By examining the Adequacy Decision process, the Schrems Judgement and some of these relevant key decisions from the CJEU, this paper seeks to discover how EU data protection law developed over time to respond to technological advances and transnational issues such as national security. In particular, how Adequacy Decisions have been assessed and implemented by key stakeholders including the Article 29 Working Party (“A29WP”) and the European Commissions to facilitate transfers to a third country. This paper will present the view that the Adequacy Decision mechanism has always had deficiencies and in light of the test set by the Schrems Judgement, the mechanism is no longer practical or feasible.
The judgement of the Court of Justice of the European Union (“CJEU”) in Schrems v. Data Protectio... more The judgement of the Court of Justice of the European Union (“CJEU”) in Schrems v. Data Protection Commissioner (“the Schrems Judgement”) was a landmark decision for EU data transfers. The Schrems Judgement invalidated the adequacy decision of the European Commission that the EU-US Safe Harbour arrangement provided an ‘adequate’ level of protection for the transfers of EU personal data. The Schrems Judgement also had a profound effect on the way an adequacy decision should be reached by the European Commission. However, before this judgement there were already signs that the Adequacy Decision process had underlying issues. Whether or not an Adequacy Decision is granted by the European Commission depends on numerous considerations ranging from political relations to the economic interests of the European Union. Consequently, this has resulted in an inconsistent application of what should be an objective and comparative analysis of a third country’s rules around privacy and protections provided to individuals.
By examining the Adequacy Decision process, the Schrems Judgement and some of these relevant key decisions from the CJEU, this paper seeks to discover how EU data protection law developed over time to respond to technological advances and transnational issues such as national security. In particular, how Adequacy Decisions have been assessed and implemented by key stakeholders including the Article 29 Working Party (“A29WP”) and the European Commissions to facilitate transfers to a third country. This paper will present the view that the Adequacy Decision mechanism has always had deficiencies and in light of the test set by the Schrems Judgement, the mechanism is no longer practical or feasible.