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US companies hoping for some guidance on managing cross-border
data transfers will be sorely disappointed.
Regarding the practical consequences of the CJEU judgment, the
Working Party considers that it is clear that transfers from the
European Union to the United States can no longer be framed on the
basis of the European Commission adequacy decision 2000/520/EC (the
so-called "Safe Harbour decision"). In any case,
transfers that are still taking place under the Safe Harbour
decision after the CJEU judgment are unlawful.
Further, although the statement indicates that the Working Party
considers that Model Contracts or binding corporate rules "can
still be used," the group reserves the right to investigate
any privacy complaints that arise in relation to any such
transfers. In addition, unless the EU and US authorities
agree on a Safe Harbor 2.0 or some other replacement, the statement
says that the data protection authorities would consider taking
"coordinated enforcement actions" against companies
unlawfully transferring data.
The last paragraph of the statement sounds a warning to US
businesses:
...in the context of the judgment, businesses should
reflect on the eventual risks they take when transferring data and
should consider putting in place any legal and technical solutions
in a timely manner to mitigate those risks and respect the EU data
protection acquis.
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.
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