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Friday, July 29, 2016

CJEU Finds Terms of Use Irrelevant as Basis for Determining Applicable DP Law

In a July 28 ruling in VKI v. Amazon EU, the Court of Justice of the European Union reaffirmed the reasoning about applicable data protection law it advanced in the Weltimmo and Google Spain cases.  Ignoring the contract between Amazon and its customers, which provided that Luxembourg law shall apply, the court held that “the processing of data in the context of the activities of an establishment is governed by the law of the Member State in whose territory that establishment is situated.”  Furthermore, the court found that it is up to national courts to determine whether Amazon is carrying out the data processing in question in the context of the activities of an establishment situated in their Member States.  As to when a company may be regarded as having an establishment, the CJEU reiterated its position that the establishment of a data processing operation “extends to any real and effective activity, even a minimal one, exercised through stable arrangements.”  The Court also held that a data processing operation will not be established “merely because the undertaking’s website is accessible” in a particular Member State.

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