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Eversheds Comment: Data Protection Commissioner to bring transatlantic data transfers before the CJEU

  • Ireland
  • General

26-05-2016

Yesterday it was announced that the Irish Data Protection Commissioner (“DPC”) is to seek declaratory relief in the Irish High Court and is to make a reference to the Court of Justice of the European Union (“CJEU”) as to whether Facebook’s EU model contracts are valid. EU model contracts are EU Commission approved agreements which are used to legitimise the transfer of personal data lawfully outside the EEA.

As we previously reported here, on the 6 October 2015 the CJEU declared the safe harbour regime as invalid. This decision arose out of a complaint made by law student, Max Schrems, concerning Facebook Ireland’s transfer of his personal data to Facebook Inc. in the US. Following the invalidation of safe harbour, many companies, including Facebook Ireland, used EU model contracts as an alternative measure to legitimise transfers of personal data to the US.

Following the fall out of the safe harbour regime, the EU Commission and the US reached political agreement on a replacement to safe harbour known as the EU-US Privacy Shield (see here, here and here), the adoption of which remains unclear. In the interim many companies adopted EU model contracts as an alternative mechanism to legitimise the transfer of personal data outside the EEA.

This recent development follows the DPC’s investigation into Facebook Ireland, which was ordered by the Irish High Court in October following the invalidation of safe harbour. Given the widespread reliance and investment made by many companies on EU model contracts, this CJEU reference will be relevant to many companies. We will continue to monitor this closely.

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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