711.424.1 Press Release 17 July 2020 After “Schrems II”: Europe needs digital independence After the adequacy of the “EU-US Privacy Shield” was invalidated by a recent decision issued by the Court of Justice of the European Union (CJEU), the Berlin Commissioner for Data Protection and the Freedom of Information, Maja Smoltczyk, is now calling on data processors in Berlin to move any personal data stored in the USA to Europe. In its decision of 16 July 2020 (“Schrems II”, C-311/18), the CJEU stated that the US authorities’ access to data belonging to European citizens is too extensive. As a result, personal data may generally no longer be transferred to the USA until the legal situation changes. There are some exceptions, especially in special cases stipulated by law, such as when booking a hotel room in the USA. One of the findings noted in the CJEU decision concerns the government surveillance measures in the USA, which involve the mass collection of personal data with no clear limitations. This contradicts the Charter of Fundamental Rights of the European Union (Paragraph 180 et seq. of the Decision). The CJEU also indicates that European citizens are unable to request a judicial review of the surveillance measures carried out by the US authorities. This violates the European fundamental right to effective legal protection. Personal data may only be transferred to third countries that ensure a level of data protection that is equivalent to the essence of the European fundamental rights. As the findings of the highest European court suggest that is not the case in the USA, the decision issued by the CJEU has invalidated the adequacy of the “EU-US Privacy Shield”, which was previously the basis for many personal data transfers to the USA. By contrast, the CJEU has ruled that “standard contractual clauses” are admissible under certain conditions; standard contractual clauses can be established between European companies and providers in third countries to ensure the European level of data protection abroad. Before the first data transfer, however, the CJEU emphasises that both European data exporters and third-country data importers are obliged to check whether the data could potentially be accessed by government authorities in the third country in a manner that goes beyond the access rights granted under European law (Paragraphs 134 et seq. & 142 of the Decision). If such rights of access are enjoyed by the government authorities, data may not even be exported on the basis of standard contractual clauses. Any data that has already been transferred to any such third countries must be retrieved. Contrary to the prevalent practice to date, data cannot be exported merely on the basis of standard contractual clauses (Paragraph 126 et seq. of the Decision). Press Officer: Dalia Kues Office: Cristina Vecchi Email: presse@datenschutz-berlin.de Friedrichstr. 219 D-10969 Berlin Tel.: +49 301 388 9900 Fax: +49 302 155 050