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Wednesday, December 30, 2015

No Safe Harbor Progress as January 31 Deadline Looms

On November 30, EU Justice Commissioner Vera Jourova told an interviewer that the EU and the US are close to a deal on a strengthened Safe Harbor and should reach an agreement during December, adding that this would probably be accomplished during a meeting scheduled for December 17.  However, the meeting was apparently postponed, possibly in light of the December 12 announcement of agreement on the final text of the General Data Protection Regulation.  In any event, the month has come and gone without any official announcement of the status of the talks. 

If Jourova was playing the optimist, an opposing perspective was issued on the same day that Jourova spoke, during Parliamentary testimony by the Dutch Justice Minister. According to the Minister, Artd van der Steur, the likelihood of an agreement being reached by the end of January is very low, particularly since discussion of the most critical issue in the talks, mass surveillance of internet traffic by the NSA, had not even begun.  With the Netherlands taking over the presidency of the Council of the European Union on January 1, 2016 and its justice ministry becoming an official channel for discussions with the US on Safe Harbor, van der Steur’s views are particularly pertinent.  Noting that European DPAs have threatened to “take all necessary and appropriate actions, which may include coordinated enforcement actions” if a solution is not found with US authorities by January 31, 2016,” the Justice Minister indicated that planning for such enforcement actions was underway.

Some ten day later, on December 10, Isabelle Falque-Pierrotin, the chair of the Article 29 Working Party, appeared to hedge on the significance of the January 31 deadline, stating that she was uncertain if a final agreement could be reached by that time and suggesting that "some kind of a political sign" that US authorities understood the main message of the CJEU judge might suffice.

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