Worldwide: European Court of Justice Issues Opinion Striking Down The Safe Harbor

In a landmark judgment in Schrems v Data Protection Commissioner (C-362/14) (October 6, 2015) ("Safe Harbor judgment"), the European Court of Justice ("ECJ") found the Safe Harbor Decision of the European Commission (Commission Decision 2000/520/EC of 26 July 2000) to be invalid. The invalidity of the Safe Harbor Decision calls into question the legality of large portions of data flows from Europe to the United States and causes considerable legal uncertainty for US companies offering their services in the EU.

Legal Background 

Under Art. 25 (1) of the EU Data Protection Directive 95/46/EC ("Directive 95/46"), the central legislation to govern the processing of personal data of European users, personal data of European citizens may be transferred to a non-EU country only if the country in question ensures an adequate level of protection of the data transferred. In its Safe Harbor Decision, the European Commission had decided that the "Safe Harbor Privacy Principles" as provided for by the United States Department of Commerce and its guidance documents (e.g., the FAQs) and procedures ensure an adequate level of protection for personal data transferred from the EU to organizations established in the US provided that these organizations: (1) have unambiguously and publicly disclosed their commitment to comply with the Safe Harbor Principles; and (2) are subject to the statutory powers of a government body in the United States that is empowered to investigate complaints and to obtain relief against unfair or deceptive practices as well as redress for individuals.
Such decisions of the European Commission are generally binding for the EU Member States and their authorities. Hence, based on the Safe Harbor Decision, the transfer of personal data of EU citizens to Safe Harbor-certified organizations in the US, which have been treated by virtue of the Safe Harbor Decision as if they were seated in a safe country in the meaning of Art. 25 (1) Directive 95/46, was considered legal. Large portions of the currently existing data transfers from the EU to the US rely for their legitimacy on the Safe Harbor Decision.

The Safe Harbor Judgment of the ECJ

The case before the ECJ was referred by the High Court of Ireland in a case brought by Max Schrems, an Austrian data protection activist, against the Irish Data Protection Commissioner ("IDPC"). Mr. Schrems had asked the IDPC to exercise his powers to prohibit Facebook from transferring his personal data to the United States. The IDPC refused to take action, arguing that it was bound by the Safe Harbor Decision. Mr. Schrems brought an action before the Irish courts, challenging this decision of the IDPC, and the High Court of Ireland referred the case to the ECJ, asking whether the Safe Harbor Decision could indeed be binding to the IDPC, given that "the revelations made by Edward Snowden had demonstrated a 'significant over-reach' on the part of the NSA and other federal agencies" on the data transferred from the European Union to the United States.
The ECJ judgment addresses the question of the High Court in two steps: 

  • In a first step, the ECJ finds that the national data protection authorities ("DPAs") are always entitled to investigate and assess, upon a complaint of a person concerned, a data transfer to a third country, regardless of whether or not the European Commission has adopted a decision on the adequacy of the level of protection in the destination country (paras. 51-57). Moreover, the ECJ alone has jurisdiction to declare that an EU action, such as a Commission decision, is invalid. This means that a DPA or the person concerned must put forward their objections against a Commission decision before a national court, which in turn may refer the case to the ECJ (paras. 61-65).  
  • In a second step, the ECJ assesses the Safe Harbor Decision itself and finds it, "without there being any need to examine the content of the safe harbor principles," to be invalid since the Commission, when adopting it, did not find "duly stating reasons" that the United States does in fact ensure, by reason of its domestic law or its international commitments, an adequate level of protection (paras. 96-98).
    The ECJ decision states that an adequate level of protection within the meaning of Art. 25 (1) Directive 95/46 does not require a level of protection identical to that guaranteed in the EU legal order. In order to comply with this standard, however, a country has to ensure a level of protection of fundamental rights and freedoms that is "essentially equivalent to that guaranteed within the European Union by virtue of Directive 95/46 read in the light of the Charter" (para. 73). According to the ECJ, the Commission did not advance in its Safe Harbor Decision sufficient reasons to the effect that the safe harbor principles actually ensured such standard of protection. Inter alia, the ECJ criticizes that the Safe Harbor Decision:
    • lays down that national security, public interest, or law enforcement requirements have primacy over the safe harbor principles (paras. 84-87),
    • contains no finding regarding the existence in the United States of rules intended to limit any interference with the fundamental rights of the persons whose data is transferred to the US (para. 88), and
    • does not refer to the existence of effective legal protection against interference of that kind (para. 89).

The ECJ decision goes on to hold that this analysis was borne out of the Commission's own assessments advanced in communications in 2013, which found that the United States authorities were able to access the personal data transferred from the Member States to the United States and process it in a way that is incompatible, in particular, with the purposes for which it was transferred and beyond what was strictly necessary and proportionate to the protection of national security. The Commission had also noted that the data subjects had no administrative or judicial means of redress enabling, in particular, the data relating to them to be accessed and, as the case may be, rectified or erased (para. 90). According to the court, such access was incompatible with the level of protection of fundamental rights and freedoms that is guaranteed within the European Union (paras. 91-95).

Basic Takeaways

The Safe Harbor judgment of the ECJ has the potential to cause a sea-change with respect to how data transfers between the EU and the US will have to be structured in the future. United States organizations cannot at this point rely any longer on a Safe Harbor certification to transfer personal data of European citizens from the European Union to the United States. In addition, the Safe Harbor judgment appears to leave no room for a new industry-driven or certificate-based solution to replace the Safe Harbor, unless the United States guarantees an adequate level of protection, i.e., a protection "essentially equivalent" to the protection afforded in the EU, based on domestic law or its international commitments. The ECJ has made clear that to this end in particular the access of United States authorities to the data of European Union citizens transferred to the United States will have to be limited in line with the requirements set out in the case law of the ECJ.
Short-term solutions will therefore, most likely, have to be based on alternative legal grounds under Art. 26 Directive 95/46 such as, e.g., standard contractual clauses or explicit consent of the persons concerned.
In its first reaction to the Safe Harbor judgment, the European Commission reiterated its determination to find a solution to ensure the continuation of data flows across the Atlantic. It announced it will continue to negotiate with the United States a "Safer" Safe Harbor framework.
In order to mitigate unreasonable legal uncertainty for United States companies facing uncoordinated initiatives by national DPAs that may feel encouraged by the Safe Harbor judgment to suspend data transfer to the US, the Commission also announced its intention to work closely with the DPAs and to issue clear guidance on how to deal with transfer requests or complaints. Whether these political initiatives of the Commission will provide for practical solutions short term is yet to be seen.

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.

In association with
Related Video
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.