An adequacy decision for the US under Article 45 of the GDPR is expected to be issued this week by the European Commission, which would in practice deem the level of data protection in the US as essentially equivalent to that in the EU, thus re-enabling seamless transatlantic data flows. However, activist groups including Nyob headed by Austrian privacy advocate Max Schrems, have already anticipated that they will contest it.
Since the Privacy Shield was ruled as invalid by the EUCJ in July 2020, the US and the EU have been negotiating a new deal following the executive order issued by US President Joe Biden in October 2022 which implemented the political agreement announced by both countries earlier in March. Companies that adhere to the principles of the New EU-US Data Privacy Framework will accordingly be allowed to freely transfer personal data across the Atlantic.
Activist groups are nevertheless expected to contest the new EU-US data transfer deal by seeking an injunction in a national court against a company relying on the new adequacy decision with such case then likely being referred to the EU’s highest court. As soon as the executive order was issued by US President Biden, Schrems insisted that the data protection framework in the US is not yet fully complying with the requirements of the EUCJ 2020 decision. Amongst the main concerns raised, is the continuous “bulk surveillance” and claims that the new Data Protection Review Court is not an “actual” court in the normal meaning of the US Constitution but rather a body within the US government’s executive branch.
Once the draft adequacy is issued, the European Commission should engage with both the EDPB and European Member States who could in turn try to oppose the deal, although their findings are not technically binding on the Commission. The overall process can take some time, so we will continue to closely monitor this developing piece of legislation and updating our blog accordingly.
The material in this article is only for general review of the topics covered and does not constitute legal advice. No legal or business decision should be based on its content.