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Friday, April 29, 2016

US Digging In on Privacy Shield, German DPAs Seek Fast Track to CJEU

On April 20, Reuters reported that the U.S. does not want to change the substance of the Privacy Shield agreement, strong objections from the Article 29 Working Party notwithstanding.  According to Stefan Selig, U.S. Undersecretary of Commerce for International Trade, the U.S. would be wary of reopening the agreement.  In the face of such official lowering of expectations, on April 28 even Christopher Graham, the UK Information Commissioner who has staked out a laissez-faire posture with respect to enforcement actions against companies still relying upon Safe Harbor, called on the U.S. to answer the questions raised by the Working Party “as a first priority.”  Speaking at a conference in London, Graham went so far as to urge U.S. corporations to pressure their government to address the objections that have been raised.

In another sign of the frustration of data protection authorities with the current standoff over the legality of data transfers, German DPAs were said to have collectively adopted a resolution on April 20 calling upon the Federal Parliament to establish an independent right to legal action for data protection authorities against adequacy decisions of the European Commission.  Taking this initiative suggests that the DPAs anticipate that U.S. intransigence is backing the European Commission into a corner with no alternative but to proceed with an adequacy decision for the Privacy Shield agreement.  While the CJEU Schrems decision affirmed that DPAs have the authority to take enforcement actions in individual cases – including requiring the suspension of data transfers – the court also made clear that it alone had the ability to overturn and nullify an adequacy decision. Whether the Parliament will be responsive to the request of the DPAs remains to be seen. 

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