In Search of Legal Certainty Regarding ‘Effective Redress’ in International Data Transfers: Unpacking the Conceptual Complexities and Clarifying the Substantive Requirements

Abstract

While effective redress has emerged as a decisive issue in the context of international data transfers, it is shrouded by legal uncertainty due to several conceptual and practical challenges. First, the CJEU rulings on the right to an effective (judicial) remedy raise issues regarding its role in the international domain as well as in relation to EU data protection primary and secondary law. Second, the extraterritorial application of substantive requirements for redress remains unclear and limited to ad hoc assessments. In particular, questions relating to the administrative and/or judicial nature of remedies as well as the according constitutive elements of redress are yet to be determinately answered. The present article aims to address this gap by proposing a roadmap of what effective redress should entail in the context of international data transfers by focusing on i) the EU autonomous definition of tribunal as developed within the CJEU case-law on Article 267 TFEU and, ii) the United Kingdom’s Investigatory Powers Tribunal (IPT) as providing for an effective judicial remedy in the context of secret surveillance.

Keywords: Data Privacy, International Data Transfers, GDPR, CJEU Schrems Judgments, Effective Redress, Article 47 EUCFR, Transatlantic Data Transfers, EU-US Data Privacy Framework, Data Protection Review Court