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Thursday, June 30, 2016

Commission Pressing Ahead with Privacy Shield Launch

On June 24, after months of difficult negotiations with U.S. authorities, the European Commission sent the text of a revised Privacy Shield agreement to the members of the Article 31 Committee for a vote scheduled to occur on July 4.  Should the agreement receive the Committee’s approval and subsequent pro forma endorsement by the College of Commissioners, Privacy Shield could be officially launched prior to the August recess.  According to EU Justice Commissioner Vera Jourova, “We reached an accord on more precise listing of cases when bulk collection can occur and a better definition of how our American partners understand the difference between bulk collection which may be justified and mass surveillance without any purpose, which is not tolerable.” Other issues addressed by the revised draft were said to include the independence of the special ombudsman and limits on the retention of transferred data by companies.

Significantly, the Commission is not seeking an evaluation of the new draft from the Article 29 Working Party nor giving the Parliament much time to respond to it.  Instead, the Commission appears to be resigned to facing the legal challenges to Privacy Shield that are all but certain to come, even though the cloud of uncertainty they and criticisms of the agreement create over the program may dissuade many U.S. companies from signing-up.  

Whether the Commission will be able to secure the approval of the Article 31 Committee by the required qualified majority vote remains to be seen.  Also unclear is what impact the Brexit vote will have on the Committee’s deliberations.  While the UK remains a full member of the EU, suppose the qualified majority would be reached only with the UK’s backing of the proposed agreement.  Would other member states take this into account in determining their own stance on the new text?

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