Communication on the transfer of personal data from the EU to the United States of America

The Court of Justice of the European Union ruling of 6 October 2015 in Case C-362/14 (Schrems) reaffirms the importance of the fundamental right to protection of personal data, as enshrined in the Charter of Fundamental Rights of the EU, including when such data are transferred outside the EU.

Transfers of personal data are an essential element of the transatlantic relationship. The EU and the United States are each other's most important trading partners, and data transfers, increasingly, form an integral part of their commercial exchanges.

In order to facilitate these data flows, while ensuring a high level of protection of personal data, the Commission recognised the adequacy of the Safe Harbour framework through the adoption of Commission Decision 2000/520/EC of 20 July 2000 ("the Safe Harbour Decision"). In this decision, the Commission had recognised the Safe Harbour Privacy Principles and accompanying Frequently Asked Questions (FAQs) issued by the Department of Commerce of the United States as providing adequate protection for the purposes of personal data transfers from the EU.

As a result, personal data could be freely transferred from EU Member States to companies in the United States which signed up to the Principles, despite the absence of a general data protection law in the United States. The functioning of the Safe Harbour arrangement relied on commitments and self-certification of adhering companies. While signing up to Safe Harbour Privacy Principles and FAQs is voluntary, these rules are binding under U.S. law for those entities that have signed up to them and enforceable by the U.S. Federal Trade Commission.

In its judgment of 6 October 2015, the Court declared the Safe Harbour Decision invalid. It is against this background that the present Communication aims to provide an overview of the alternative tools for transatlantic data transfers under Directive 95/46/EC in the absence of an adequacy decision. It also briefly describes consequences of the judgment for other Commission adequacy decisions.

ESO: Background information: Commission issues guidance on transatlantic data transfers and urges the swift establishment of a new framework following the ruling in the Schrems case http://www.europeansources.info/record/press-release-commission-issues-guidance-on-transatlantic-data-transfers-and-urges-the-swift-establishment-of-a-new-framework-following-the-ruling-in-the-schrems-case/

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