Reality and Illusion in EU Data Transfer Regulation Post Schrems

German Law Journal, volume 18 (2017 Forthcoming)

University of Cambridge Faculty of Law Research Paper No. 14/2016

39 Pages Posted: 6 Mar 2016 Last revised: 28 Dec 2016

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: February 14, 2016

Abstract

In Schrems v. Data Protection Commissioner, the Court of Justice of the European Union invalidated the EU-US Safe Harbour arrangement allowing personal data to be transferred to the US. The judgment affirms the fundamental right to data protection, defines an adequate level of data protection for international data transfers under EU law, and extends data protection rights to third countries, all based on the EU Charter of Fundamental Rights. The judgment is a landmark in the Court’s data protection case law, and illustrates the tension between the high level of legal protection for data transfers in EU law and the illusion of protection in practice. The judgment has undermined the logical consistency of the other legal bases for data transfer besides the Safe Harbour, and reactions to it have largely been based on formalism or data localization measures that are unlikely to provide real protection. Schrems also illustrates how many legal disagreements concerning data transfers are essentially political arguments in disguise. 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. It is crucial for data transfer regulation to go beyond formalistic measures and legal fictions, in order to move regulation of data transfers in EU law 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 (February 14, 2016). German Law Journal, volume 18 (2017 Forthcoming); University of Cambridge Faculty of Law Research Paper No. 14/2016. 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

Paper statistics

Downloads
1,515
Rank
8,820
Abstract Views
3,870