European Union: Safe Harbor Briefing Note

This note sets out:

  • information about the effects of the CJEU judgment invalidating the Safe Harbor;
  • alternatives to the Safe Harbor that may be available; and
  • recommended next steps.


On 6 October 2015, the CJEU found the EU/US Safe Harbor agreement to be invalid in the case of Schrems v Data Protection Commissioner. This means that the Safe Harbor can no longer be relied upon by companies in the EU that need to transfer personal data to the US (whether to other group companies, service providers or other third parties).

Whilst it is unlikely that EU data protection authorities (DPAs) will start taking enforcement action immediately against companies that have been relying on the Safe Harbor (given the large number of EU companies that have been doing so, and that until the CJEU's judgment the Safe Harbor was formally recognised as a valid basis for transferring data to the US), it will be important to show the DPAs that prompt action is being taken to implement alternative measures to enable transfers to the US to continue in compliance with EU law. We would not rule out the possibility that the DPAs will start taking enforcement action against companies that continue to transfer data to the US without implementing alternative measures once they have had an opportunity to put these measures in place.


There are several alternatives to the Safe Harbor, which are regularly used for transfers from the EU to other non-EU countries. The principal alternative mechanisms are:

  • Using standard contracts approved by the European Commission(known as 'standard contractual clauses' or 'model clauses'). These can be used for transfers to US-based service providers (such as outsourcing and cloud computing providers), as well as for transfers to US companies that use the data for their own purposes. There are two forms of standard contractual clauses –controller-to-processor (C2P), for transfers to service providers, and controller-to-controller (C2C), for transfers to US companies that use the data for their own purposes. It is important for companies implementing the standard contractual clauses to note that they contain real obligations that must be complied with in practice; they cannot simply be signed and 'put in a drawer', as often happens.
  • Obtaining consent from data subjects to their data being transferred to the US. This will not, however, be appropriate in all circumstances, and should be considered only if other options are not available.
  • Putting in place Binding Corporate Rules (formal arrangements for intra-group transfers). This is appropriate only for transfers to other group companies, and cannot be used for transfers to third parties.

Which of these is the most appropriate will depend on the type of data transfer, and not all of them may be available in all cases. In most cases, companies relying on the Safe Harbor for data transfers to the US fall into one of the following five categories:

  • Companies in the EU transferring data to US-based service providers (such as cloud computing providers) under the Safe Harbor. In most cases, the Safe Harbor can be replaced with standard contractual clauses (usually using the C2P form). It is important to note that a number of major US cloud providers, such as Microsoft, Google and Amazon, already use standard contractual clauses despite also being members of the Safe Harbor, meaning that there is already an alternative mechanism in place to allow the transfers to continue. For service providers that have been relying solely on the Safe Harbor, standard contractual clauses can be put in place.
  • Companies transferring data intra-group from the EU to the US under the Safe Harbor. For intra-group transfers to US companies, standard contractual clauses will generally be the most appropriate short-term measure. The standard contractual clauses will follow either the C2C form, where data is shared with group companies in the US for their own purposes, or the C2P form, where a group company in the US acts as service provider on behalf of group companies in the EU. Companies should also evaluate the possibility of implementing Binding Corporate Rules(BCRs), which offer a more flexible solution for intra-group transfers (to the US and elsewhere); however, it is important to note that implementation of BCRs is a substantial undertaking, with most BCR projects taking at least 18 months to complete.
  • Companies in the EU that share personal data with third parties in the US under the Safe Harbor. These transfers can generally be covered by standard contractual clauses (usually the C2C form).
  • Companies in the US that receive personal data from third parties in the EU under the Safe Harbor. These transfers can generally be covered by standard contractual clauses (C2C or C2P, as appropriate).
  • Companies in the US that collect data directly from EU data subjects under the Safe Harbor. These companies have a few options available:

    • One is to put in place standard contractual clauses (usually using the C2C form) with an EU group company. However, that may not be appropriate in all cases, and it may require broader changes to the way in which the company operates (i.e. the data would have to be genuinely collected by the EU group company so that the contract reflects how data flows actually operate).We would expect DPAs to scrutinise carefully arrangements under which a US company has simply incorporated an EU subsidiary solely for purposes of having an EU-based counterparty to enter into the standard contractual clauses.
    • Another option is to rely on data subjects' consent to their data being transferred to the US. This is a valid option provided that the consent is freely given and the wording of the consent is sufficiently clear, but there are some data subjects (such as employees) for whom it will not be appropriate. Another important point is that consent can be withdrawn subsequently, so there would need to be a back-up plan for those individuals who withdraw consent. (In the case of online companies, for example, users who subsequently withdraw consent may simply have their accounts deleted.)
    • In some cases companies may be able to rely on the transfer being necessary for performance of a contract with the data subject. This will require consideration on a case-by-case basis.


The steps that each company will need to take depend on how the Safe Harbor is being used by that company, and in particular whether the company has been transferring data or receiving data (or both) in reliance on the Safe Harbor. Companies will need to conduct some initial data gathering in order to assess what their alternative options are.

We suggest assessing this both from the perspective of (a) companies in the US that are currently members of the Safe Harbor and (b) companies in the EU that transfer data to companies in the US under the Safe Harbor.

(a) Identify group companies which are existing Safe Harbor members

  • Corporate groups will need to identify which group companies are Safe Harbor members. If the group doesn't have an internal record of its Safe Harbor members, it can check the online Safe Harbor list (available at to determine which group companies are members of the Safe Harbor.
  • For each company identified as a Safe Harbor member, the following needsto be identified:

    • Which personal data does it receive from the EU?
    • Who are the data subjects?
    • How does it receive that data –directly from data subjects or from other companies? If from other companies, who are they?
    • For what purposes does the company receive the data? In particular, does it use the data for its own purposes or is it merely a service provider on behalf of other companies?
    • Does the company transfer the data to any other companies? If so, to whom and where are those companies located?

(b) Identify transfers from EU group companies to the US

(i) Transfers to Service providers

  • EU companies should identify which of their service providers rely on the Safe Harbor. This can be checked against the Safe Harbor list. However, it is important to note that the fact that a provider appears on the Safe Harbor list does not necessarily mean that remedial action is required. For example, the provider may also use other mechanisms for transfers to the US (such as standard contractual clauses), rather than relying solely on the Safe Harbor. Similarly, some providers are Safe Harbor members but service some or all of their EU customers from facilities in the EU.
  • Once a company has identified which of its service providers was relying solely on the Safe Harbor to provide services to the company, the company will need to ascertain the types of data processed by each provider, the categories of data subject and the nature of the services provided.
  • These providers should then be contacted and informed that standard contractual clauses should be put in place as a priority. A number of those service providers may already have prepared completed sets of clauses reflecting the data that they process as standard, in which case those should be reviewed; in other cases, the company can either request the provider to prepare a set of clauses or prepare its own.
  • We expect that a number of US providers will act proactively and contact their customers in the EU to address their concerns.

(ii) Transfers to other US companies

Some companies in the EU may also be sharing data with other third parties in the US (such as collaboration partners) under the Safe Harbor. This type of data sharing may be more difficult to identify and the full range of group activities and business collaborations should be considered carefully to identify the range of third party data sharing arrangements.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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