EU Advocate General Advisory Opinion on Schrems Case Chips Away at Foundation for Transatlantic Data Flows

December 19, 2019

BRUSSELS—In response to the opinion of the advocate general of the Court of Justice of the European Union (CJEU) in the Schrems case challenging the legality of data transfers by Facebook from the EU to the United States, Center for Data Innovation senior policy analyst Eline Chivot issued the following statement:

European policymakers need to stop approaching transatlantic data flows like a jenga game. They are removing one piece of the system at a time, hoping not to be the ones caught toppling the whole thing, but they are bringing us closer and closer to its inevitable collapse.

It is encouraging that today’s opinion upholds the validity of standard contractual clauses (SCCs), a mechanism countless companies rely on to transfer personal data from the EU to the United States and other countries safely and in compliance with EU law.

However, the advocate general also suggests that supervisory authorities in EU member states are permitted to suspend data transfers based on SCCs to the United States, even though the EU-U.S. Privacy Shield has established a legal basis for them. Moreover, the advocate general also places the EU-U.S. Privacy Shield in the firing line by questioning its validity, even though the European Commission recently endorsed it as a trustworthy mechanism. These types of arguments create uncertainty and increase risk for businesses by undermining the viability of transatlantic data flows. This comes at a time when the EU and the United States should be fostering greater cooperation in the digital economy to respond to the risk of growing economic dominance from China.

We look forward to the Court's decision next year and urge it to reaffirm the validity of SCCs and the EU-U.S. Privacy Shield.