Essential Equivalence as a Benchmark for International Data Transfers After Schrems II
"Research Handbook on EU data protection" edited by Kosta, Eleni and Leenes, Ronald, Edward Elgar Publishing Ltd., Forthcoming
30 Pages Posted: 5 Aug 2021
Date Written: July 7, 2021
In July 2020, the Court of Justice of the European Union (CJEU) published its ruling on ‘Schrems II’. The CJEU invalidated the Privacy Shield – one of the mechanisms existing for transfers to the United States - and further expanded the concept of essential equivalence previously developed in Schrems I by extending its scope towards a guiding benchmark for the whole approach for international data transfers in the GDPR. This Chapter explores how the GDPR international data transfers regime, established in Articles 44 to 49 GDPR, should be understood in light of both the standard and the test of essential equivalence, pronounced in Schrems II. We argue that the CJEU judgment in Schrems II necessitates a thorough re-evaluation of the GDPR’s system for data transfers, with fundamental rights at the forefront. At the same the CJEU’s approach leaves many questions surrounding data transfers open, such as what is a transfer of personal data in the first place and how should controllers or processors assess essential equivalence themselves.
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