The Court of Justice of the European Union (CJEU)’s historic decision in Schrems II, in which the EU-U.S. Privacy Shield was invalidated, requires businesses to rethink the mechanism they can rely on to transfer personal data from the EU to the United States and other countries. After several EU data protection authorities (DPAs) published their reactions, the European Data Protection Board (EDPB), an association comprising, inter alia, national DPAs of all EU Member States, presented its guidance in form of an FAQ.

At the time of its publication, the guidance comprises 12 FAQs. It will be updated with further analysis. While the EDPB notes that supplementary measures may be necessary when using standard contractual clauses (SCCs), it fails to specify what that means but promises to provide more guidance in the future. Summarized below are the key takeaways from the EDPB’s guidance.

In General:

  • There is no grace period for EU- U.S. Privacy Shield certified organizations to put in place a new transfer mechanism. (FAQ 3)
  • Transfers based on the EU-U.S. Privacy Shield are illegal. (FAQ 4)

On the use of SCCs (FAQ 5, 9):

  • If the country of destination does not provide sufficient protection, SCCs may still serve as a transfer mechanism, if supplementary measures are put in place. The EDPB is currently analysing and will issue further guidance on the necessary supplementary measures.
  • Parties to the transfer should suspend/end the transfer, or inform the DPA, if SCCs are still used (a) without the country of destination providing an adequate level of protection, and (b) without the supplementary measures.

On the use of Binding Corporate Rules (BCRs) (FAQ 6, 9):

  • In principle, the Schrems II judgment applies to BCRs as well.
  • In relation to BCRs, companies should assess the law of the country of destination, put in place supplementary measures if the level is not adequate, and inform the DPA if the transfer continues. If supplementary measures are not put in place, transfers should end.

On the use of Art. 49 GDPR exceptions (FAQ 8):

  • Use of Art. 49 GDPR derogations (e.g., explicit, specific, and informed consent; for occasional transfers related to a contract; transfers necessary for important reasons of public interest, as recognized by the EU Member States), may be permissible depending on the circumstances.

When none of the transfer options work, data should be localized(FAQ 12):

  • If data controllers use data processors that transfer data to the US, the EDPB states “the only solution is to negotiate an amendment or supplementary clause to your contract to forbid transfers to the U.S.” The EDPB further notes that: “If no suitable ground for transfers to a third country can be found, personal data should not be transferred outside the EEA territory and all processing activities should take place in the EEA.”
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Dr. Viola Bensinger Dr. Viola Bensinger

Viola Bensinger is Global Co-Chair of the Greenberg Traurig’s IP & Technology Practice Group and the Global Data Privacy & Cybersecurity Practice, and also chairs the Technology Practice in Germany. She advises clients from the technology, media, health care, automotive and other industries.

Photo of Gretchen A. Ramos Gretchen A. Ramos

Gretchen A. Ramos is Global Co-Chair of the Data, Privacy & Cybersecurity Practice. Gretchen is a creative problem-solver that various large tech clients rely on to handle their most challenging data protection issues. Clients appreciate not only her legal skills, but also her

Gretchen A. Ramos is Global Co-Chair of the Data, Privacy & Cybersecurity Practice. Gretchen is a creative problem-solver that various large tech clients rely on to handle their most challenging data protection issues. Clients appreciate not only her legal skills, but also her direct, no-nonsense approach in providing advice. She works closely with her clients to manage data and leverage its value in ways to meet compliance obligations, as well as deliver value to the business and instill consumer trust.

Photo of Carsten A. Kociok Carsten A. Kociok

Carsten Kociok is a data privacy expert with a wide-ranging practice representing domestic and international clients on complex legal issues. He advises clients across all industries on a wide variety of complex matters, including international data transfers, data privacy compliance, litigation, cybersecurity and

Carsten Kociok is a data privacy expert with a wide-ranging practice representing domestic and international clients on complex legal issues. He advises clients across all industries on a wide variety of complex matters, including international data transfers, data privacy compliance, litigation, cybersecurity and data breach response. Carsten is a recognized expert on the EU General Data Protection Regulation (GDPR) and other EU and German data privacy laws and a leading specialist in the field of financial technology laws.

Photo of Dr. Johanna Hofmann Dr. Johanna Hofmann

Johanna Hofmann advises German and international companies and groupt of companies on all questions of data protection and IT security law. The focus of her work is on the data protection-compliant structuring of existing and future business relationships, both on a national and…

Johanna Hofmann advises German and international companies and groupt of companies on all questions of data protection and IT security law. The focus of her work is on the data protection-compliant structuring of existing and future business relationships, both on a national and international level. Her field of interest lays in particular in the field of cloud computing, data protection certification and data security management. Through long-term secondments at a German group of companies and at the German subsidiary of a US-American technology group, Johanna has gained deep insights into different kinds of group-wide data protection organizations.

Before joining Greenberg Traurig Johanna worked with CMS Hasche Sigle in Munich for over two years. Prior to this, for several years she was a member of the project group for constitutionally compatible technology design and was in charge of an interdisciplinary research project on the dynamic data protection and IT security certification of cloud computing services.