Court of Justice of the European Union (CJEU)

On November 18, 2021, the Advocate General of the Court of Justice of the European Union (“CJEU”) issued an opinion on several data retention cases before by the Court, following a long line of CJEU jurisprudence on this topic.

To give context to the issues considered in these cases, Europe’s experience of totalitarian regimes in the last century has shaped its approach to privacy rights.  This is evident in the GDPR and in the decisions of the CJEU to date.  But there remain tensions that are complex and difficult to deal with in this area — notably, the tension between individual rights to privacy and data protection on one hand, and the duty of the State to protect its population against security threats and crime on the other.  These tensions do not marry easily, as surveillance of personal electronic communications is increasingly demanded to detect and deal with crime and terrorism.


Continue Reading Advocate General Releases Opinion in CJEU Referrals on Data Retention

On June 15, 2021, the Court of Justice of the European Union (“CJEU”) rendered a decision (press release here, full judgment here) addressing whether a European supervisory authority (“SA”) that is not the “Lead SA” (as defined in Article 56 GDPR) has competence to bring a case for an alleged violation of the General Data Protection Regulation (“GDPR“) before a national court in instances where the alleged violation involved the processing of personal data across multiple EU Member States.  In such scenarios, a controller with a main establishment in Europe will typically seek to benefit from the so-called “one-stop-shop” principle under Article 56 GDPR, meaning the controller would need to answer to only one SA rather than be subject to enforcement actions brought by numerous SAs.
Continue Reading CJEU Decides on Competence of Supervisory Authorities to Bring Cases Before National Courts under the GDPR

On June 1, 2021, several German supervisory authorities (“SAs”) announced the launch of a “nationwide investigation” into German companies transferring personal data outside of the European Economic Area.  Currently, there is no official list of all the SAs participating in the investigation, but at least 8 of Germany’s 16 regional SAs have announced their intention to take part in it, including: Baden Wuerttemberg, Bavaria, Berlin, Brandenburg, Hamburg, Lower Saxony, Rhineland-Palatinate, and Saarland.
Continue Reading German Supervisory Authorities Probe Data Transfers

Until now, damages claims awarded by German courts pursuant to Article 82 of the General Data Protection Regulation (“GDPR”) – in particular, claims for non-material damages – have been relatively low.  This restrained approach thus far has been predicated primarily on the position that German law requires a serious violation of personality rights to justify higher claims for non-material damages.  Two recent cases decided by regional courts illustrate and confirm this prevailing stance.  However, a more recent decision issued by the Federal Constitutional Court indicates that views in Germany may be evolving on this topic, and courts may soon be willing to entertain higher damages claims.

Continue Reading A New Day for GDPR Damages Claims in Germany?

On January 13, 2021, the Advocate General (“AG”), Michal Bobek, of the Court of Justice of the European Union (“CJEU”) issued his Opinion in Case C-645/19 Facebook Ireland Limited, Facebook Inc., Facebook Belgium BVBA v. the Belgian Data Protection Authority (“Belgian DPA”).  The AG determined that the one-stop shop mechanism under the EU’s General Data Protection Regulation (“GDPR”) prevents supervisory authorities, who are not the lead supervisory authority (“LSA”) of a controller or processor, from bringing proceedings before their national court, except in limited and exceptional cases specifically provided for by the GDPR.  The case will now move to the CJEU for a final judgment.

Continue Reading Supervisory Authorities Cannot Circumvent One-Stop-Shop According to CJEU Advocate General

On September 7, 2020, the German data protection supervisory authority for Baden-Wuerttemberg (“DPA-BW”) released new guidelines following the Schrems II judgment on how companies should transfer data to third countries. For a more in-depth summary of the CJEU’s Schrems II decision, please see our previous blog post here and our audiocast episode here.

Continue Reading New Guidelines for Companies from German Supervisory Authority (DPA-BW) following Schrems II

On 16 July, 2020, the Court of Justice of the EU (“CJEU”), issued its decision in the Schrems II case.  In short, the CJEU invalidated the EU-U.S. Privacy Shield and clarified that the use of standard contractual clauses (“SCCs”) requires data controllers to conduct a case-by-case assessment of the level of data protection that SCCs can provide, taking into account the nature of the personal data transfer(s) and the country of destination.  For a more in-depth summary of the CJEU’s decision, please see our blog post here and our audiocast here.

Now, almost two months after the decision, it is an opportune time for businesses to take stock of what exactly happened and assess the practical implications of the judgement.  The result of this impact analysis may be underwhelming for some.  So far, European regulators have been mostly silent (save a few exceptions[1]) and have not issued any actionable guidance to speak of.  In all fairness, the obligations imposed by the CJEU’s judgement may be just as daunting for regulators to apply in practice as for businesses.  As a result, companies and practitioners are left grappling with what exactly they should do in the aftermath of this decision.

In this blog post, we set out some recommendations for immediate and long-term actions that businesses may want to consider implementing.  Note, however, that much depends on the nature of the personal data transfers concerned.  As can be gleaned from the CJEU’s judgement, some transfers are more sensitive than others, and some sectors are more sensitive than others (in particular, the electronic communications sector).  These risk-based considerations should inform how businesses prioritize remedial actions going forward.


Continue Reading Life After Schrems II: Practical Recommendations In An Uncertain Time

On January 10, 2019, Advocate General Szpunar of the Court of Justice of the European Union (CJEU) released his opinion regarding a 2016 enforcement action carried out by the French Supervisory Authority (CNIL) against Google.  In that case, the CNIL ordered Google to de-reference links to webpages containing personal data.  According to the CNIL, the

On October 3, 2017, the Irish High Court referred Data Protection Commissioner v Facebook Ireland Limited [2016 No. 4809 P.] to the Court of Justice of the European Union (“CJEU”).  The case, commonly referred to as Schrems II, is based on a complaint by Max Schrems concerning the transfer of personal data by Facebook, from Ireland to the United States, using the EU Standard Contract Clauses (“SCCs”).

Background

The SCCs are a European Commission-approved mechanism to legally effect the transfer of personal data from the EEA to third (non-EEA) countries.  The SCCs provide for a contractual arrangement between a EEA-based data exporter and a non-EEA-based data importer of personal data, under which the data importer agrees to abide by EU privacy standards.
Continue Reading Validity of EU Standard Contractual Clauses Referred to CJEU

By Dan Cooper and Rosie Klement

On July 26, 2017, the Court of Justice of the EU (CJEU) published Opinion 1-15 (the “Opinion”) on the proposed agreement between the European Union and Canada on the transfer and processing of passenger name record (“PNR”) data (the “Agreement”).  The Agreement was signed in 2014, but the CJEU was asked to determine whether it was compatible with EU data protection law before it is approved by the European Parliament.

The Opinion concluded that a number of provisions relating to the transfer of PNR data – particularly sensitive data – are incompatible with the EU Data Protection Directive (Directive 95/46) and the fundamental rights to privacy and data protection, and the protection against discrimination, under Articles 7, 8 and 21 of the EU Charter of Fundamental Rights (the “Charter”), meaning the Agreement must be renegotiated before it enters into force.

Notably, the CJEU’s opinion was consistent with its recent judgments concerning data transfers to “third countries” (outside the EEA) in Schrems and Tele2/Watson
Continue Reading CJEU: EU-Canada proposed agreement on the transfer of Passenger Name Record data does not conform to EU data protection law standards