Safe Harbor is invalid as a guarantee of privacy, says AG of European Court of Justice

The Court of Justice of the European Union’s Advocate General, Yves Bot, has issued an opinion on the EU-US Safe Harbor saying that it is invalid as an automatic assurance of privacy due to breaches of fundamental rights of privacy and data protection in the US. In a clear win for national DP Authorities in the so called Max Schrems / Facebook case, the AG says that the EU Commission’s adequacy finding cannot eliminate or even reduce the national supervisory authorities’ independent powers, and that the DPAs are free to suspend transfers if they consider they do not fulfil the adequacy requirements for international data transfers. In this case, the DPAs would be allowed to stop transfers of personal data of European Facebook subscribers to servers located in the United States.

While the Advocate General’s opinion is not binding, the Court usually follows it. It is expected that the final decision by the European Court of Justice will be taken in a few months’ time.

Tanguy Van Overstraeten, Partner and Global Head of Privacy and Data Protection at Linklaters LLP said: “If the Court of Justice follows this opinion it will cause real headaches for many US businesses who are operating in the EU.”

“The decision illustrates how privacy and data protection have become fundamental constitutional rights in the European Union. The decision may also have a wider impact also affecting other decisions of the EU Commission in relation to international data transfers.”