Evaluating the legal admissibility of data transfers from the EU to the USA

Alessandra Silveira (Editor) and João Marques (Lawyer, former member of Portuguese Data Protection Supervisory Authority)

1. The feud between Maximillian Schrems and the Irish Data Protection Supervisory Authority (Data Protection Commission – DPC), with Facebook always lingering in, has been detrimental to frame the legality of data flows from the European Union (EU) to the United States of America (USA), but also to any third country that replicates the shortcomings relating to the inexistence of a “level of protection essentially equivalent to that guaranteed within the European Union (…), read in the light of the Charter of Fundamental Rights of the European Union” [in the words of the Court of Justice of the European Union (CJEU)].[1]

2. The sole action of one man has brought down two different and sequential “transfer tools”, created in tandem by both the European Commission (EC) and the United States’ Government. In case C-362/14 the CJEU declared the Safe Harbour decision (Commission Decision 2000/520/EC of 26 July 2000) invalid, as the Court found that the USA’s legislation did not offer an essentially equivalent level of protection to that of the EU, also reminding all Data Protection Supervisory Authorities that their work is never done and that it is, in fact, upon their shoulders the task and the responsibility to constantly monitor if any given third country complies and remains compliant with the need to offer such an equivalency.

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R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) : Realpolitik and the Revocation of an Article 50 TEU Notification to Withdraw

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by John Cotter, Senior Lecturer at University of Wolverhampton Law School

The opening lines of a judgment – in common law jurisdictions, at least – can very often be revealing of a court’s concerns. The first five paragraphs of the collegiate High Court judgment (Lord Thomas CJ, Sir Terence Etherton MR and Sales LJ) in Miller indicate very clearly the judges’ worry that their judgment would be misunderstood by sections of the media and the wider public. This judgment did not have “any bearing on the question of the merits or demerits of a withdrawal of the [UK] from the [EU]”, the Court stated. Rather, the question before the Court was a narrow constitutional issue, and a purely legal matter: whether the government could use Royal prerogative powers to give notification of withdrawal from the EU pursuant to Article 50 TEU or whether this was a matter for the Houses of Parliament. On this question, the High Court ruled that the notification under Article 50 TEU may not be given by means of Royal prerogative; rather, such notification is a matter for Parliament exclusively. While the conducting of international relations and the signing of and withdrawal from international treaties were powers generally to be exercised by the executive on behalf of the Crown, the High Court reasoned that where withdrawal from a treaty would result in changes to domestic law (as withdrawal from the EU would), such withdrawal could not be effected without Parliament.

The Court’s attempt to avoid misinterpretation of its role appears, however, to have fallen on deaf or wilfully closed ears, with the judges being subjected to attacks in sections of the media that were astonishing even by the standards of Britain’s rather histrionic tabloid press (one publication’s front page contained the headline “Enemies of the People” along with photographs of the three judges). To many of those advocating Brexit, the judgment was an unelected court playing politics and frustrating the will of the people (even though the European Union Referendum Act 2015 had not provided that the referendum result be binding). To the Court’s defenders, the judgment was the latest in a line of rulings in which the courts upheld the supremacy of Parliament over Royal prerogative powers. It is certainly the case that the High Court judgment, if upheld by the Supreme Court (which is due to hear an appeal in early December), has the potential to make the giving of the Article 50 notification a more lengthy and complex process. It is conceivable that both Houses of Parliament could use their leverage to require the government to reveal more detail on their post-notification negotiating aims. However, as a matter of realpolitik, the judgment is unlikely prevent Article 50 being triggered: Labour, the largest opposition party in the Commons has indicated that it will not vote against a Bill to give notification under Article 50, and it is unlikely that the Lords would provoke further questions about their relevance in modern Britain by blocking Brexit.

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