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Reality and Illusion in EU Data Transfer Regulation Post Schrems

18 German Law Journal 881 (2017)

38 Pages Posted: 6 Mar 2016 Last revised: 8 Jul 2017

Christopher Kuner

Brussels Privacy Hub, Vrije Universiteit Brussel (VUB); London School of Economics - Law Department; Centre for Information and Innovation Law, University of Copenhagen; Faculty of Law, University of Cambridge

Date Written: July 7, 2017

Abstract

The judgment of the Court of Justice of the European Union in Schrems v. Data Protection Commissioner, in which the Court invalidated the EU-US Safe Harbour arrangement, is a landmark in EU data protection law. The judgment affirms the fundamental right to data protection in the context of international data transfers, defines an adequate level of data protection, and illustrates how data protection rights under EU law can apply to data processing in third countries. It also raises questions about the status of other legal bases for international data transfers under EU law, and shows that many legal disputes concerning data transfers are essentially political arguments in disguise. The Schrems judgment illustrates the tendency of EU data protection law to focus on legalistic mechanisms to protect data transfers rather than on protection in practice. The EU and the US have since agreed on a replacement for the Safe Harbour (the EU-US Privacy Shield), the validity of which will likely be tested in the Court of Justice. Regulation of data transfers needs to go beyond formalistic measures and legal fictions, in order to move from illusion to reality.

Keywords: Data protection, privacy, European Court of Justice, Schrems, Privacy Shield, EU law, Internet privacy, international data transfers

Suggested Citation

Kuner, Christopher, Reality and Illusion in EU Data Transfer Regulation Post Schrems (July 7, 2017). 18 German Law Journal 881 (2017). Available at SSRN: https://ssrn.com/abstract=2732346

Christopher Kuner (Contact Author)

Brussels Privacy Hub, Vrije Universiteit Brussel (VUB) ( email )

Pleinlaan 2
Brussels, 1050
Belgium

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

Centre for Information and Innovation Law, University of Copenhagen ( email )

Studiestraede 6
Studiestrade 6
Copenhagen, DK-1455
Denmark

Faculty of Law, University of Cambridge ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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