Germany: German DPAs Add Further Pressure To EU-US Data Transfers

Yesterday, German federal and state (Länder) data protection authorities ("DPAs") issued a Position Paper following the recent Court of Justice of the European Union ("CJEU") ruling that struck down the EU-US Safe Harbor Framework. Read an unofficial translation of the German Position Paper here.

Unfortunately, the Position Paper does little to relieve the pressure many organisations are now facing in relation to their cross-Atlantic data transfer mechanisms, particularly those used to transfer data from Germany to the United States.1

The main points from the German Position Paper are as follows:

  1. Consistent with the CJEU decision, no data transfer is permitted on the basis of the EU-US Safe Harbor Framework. The German DPAs will prohibit data transfers which they become aware of that are exclusively based on Safe Harbor.
  2. In light of the CJEU's judgment – which was based largely on concerns over U.S. governmental surveillance – other transfer mechanisms such as EU Model Clauses or binding corporate rules ("BCR") have been called into question.
  3. EU Member States such as Germany may independently, and irrespective of any EU Commission decision, review and assess the level of data protection afforded in any country outside of the European Economic Area.
  4. The German DPAs will assess the legality of data transfers based on EU Model Clauses on the basis of the principles formulated by the CJEU in its Safe Harbor judgement. In this respect, the DPAs make reference to recitals 94 and 95 of the judgement, and indicate particular concern with data protection regimes that: (a) permit government authorities generalised access to the content of electronic communications; and (b) do not provide an individual with the legal right to access his or her personal data, or to revise or erase such data.
  5. The DPAs stress the importance of their data privacy and security guidelines on cloud computing, which were issued in October 2014.
  6. The DPAs will not grant any new authorisations for data transfers to the U.S. on the basis of BCRs for the time being.

Individual consent may be used as a mechanism for data transfers from Germany to the US, but not where data is transmitted repeatedly, on a large scale or as a routine procedure. Consent for transfers of employee data will only be acceptable in exceptional cases.

Key takeaways from the Position Paper are:

  1. Safe Harbor Enforcement.  The German DPAs will enforce the CJEU judgment prohibiting Safe Harbor data transfers, and companies are on notice that - investigations may commence immediately.
  2. Data transfer as "necessary for the performance of the contract."  While reference is made in the Position Paper to transfers on the basis of consent, Model Clauses, BCRs and Safe Harbor, the DPAs do not discuss whether other permitted transfer mechanisms under the EU Data Protection Directive remain viable. For example, it does not address the legality of transfers that are necessary for the performance of a contract with the data subject.  While this exception applies only in limited circumstances, it may be an important mechanism for core operations that companies undertake for their customers and consumers.
  3. Validity of Existing Approved BCRs. Although the DPAs have stated that they will not grant new authorisations for data transfers to the U.S. based on BCRs, this does not necessarily mean that the DPAs will interfere with data transfers that are based on existing BCRs or for that matter on data transfer agreements that have already been approved.
  4. Adequacy of Model Clauses. Companies should keep in mind that in Germany, data transfers based on EU Model Clauses do not require DPA approval. EU Model Clauses can therefore still be used. However, it is likely that any German DPA investigation into Model Clause-based transfers will take a strict approach to assessing the adequacy of protection they provide with a specific focus on the type of data transferred and the access to such data by foreign governmental authorities.
  5. Cloud Computing Guidance. Companies should analyse the specific guidelines for cloud computing which the German DPAs issued last year. The guidelines set forth specific requirements for cloud services, and incorporate technical data security and contractual provisions that go beyond the level of protection provided by standard EU Model Clauses. The guidelines are available in German here.

What to do now?

Companies are understandably alarmed by the bleak assessment of current data transfer mechanisms outlined by the German DPAs.  We nonetheless advise organisations to proceed methodically, and to closely monitor for further guidance from other data protection and governmental authorities. For example, the European Commission confirmed yesterday that it will soon issue guidance on international data transfers following the CJEU decision and that it is confident good progress will be made on a new agreement for transatlantic data flows by mid-November. Read the European Commission's press release here.

Therefore, apart from data transfers based on Safe Harbor (which, according to both the German DPAs and also the Article 29 Working Group, require immediate remediation), a pragmatic approach based on preparedness is most sensible:

  • Following the original Safe Harbor decision of the CJEU, many organisations have initiated data mapping exercises to understand what data they are transferring to the US, to whom and why. This still remains the most reasonable action in the immediate term. Understanding your data flows will ensure that you are able to respond appropriately to further developments in this area.
  • Design potential disclosure-and-choice mechanisms that make as strong a case as possible for notice and consent; and as applicable, draft template agreements based on/incorporating the EU Model Clauses and deploy them after discussing with customers the pros/cons and associated regulatory risks.

While both consent and Model Clause mechanisms are still subject to regulatory scrutiny in light of the Position Paper and the Article 29 Working Party's recent statement, it makes good sense to prepare these items for quick deployment.  And it is also worth remembering that the Article 29 Working Party, which is a representative body of all EU data protection authorities including those in Germany, has signalled that authorities will likely wait until the end of January 2016 to flex their enforcement powers.

Read more about some of the practical suggestions we made previously for responding to the CJEU decision here.

We will continue to follow developments on the EU-US trans-Atlantic data transfer pact as details become available.  Please check back for continued coverage.


1 Some German data protection authorities published statements which are even more extreme, for example, denying the feasibility of any data transfers to the US or requiring a company to seek explicit approval for any data transfers to the US. However, the views of these authorities can, in this respect, be considered not in line with the general view of German DPAs as set out in the Position Paper.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
25 Oct 2018, Workshop, Las Vegas, United States

The BLX/Orrick Workshop offers timely discussions of topics related to post-issuance compliance and tax law for the public finance and 501(c)(3) communities who borrow on a tax-exempt basis.

30 Oct 2018, Speaking Engagement, New York, United States

Employment partner Mike Delikat is participating in a discussion hosted by Cornell University’s School of Industrial and Labor Relations led by Counsel to New York State Governor Cuomo and chair of the Governor’s workgroup on the deregulation of adult marijuana use, Alphonso David.

6 Nov 2018, Other, Dusseldorf, Germany

Orrick is proud to present the second event in the series Fashion Revolution Düsseldorf, once again in cooperation with WHU - Otto Beisheim School of Management.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions