Commission Decision on standard contractual clauses does not infringe fundamental rights, CJEU AG says

22 Gennaio 2020
On 19 December 2019, Advocate General Saugmandsgaard Øe released his opinion in Case C-311/18, a new chapter of the “Schrems saga” concerning the transfer of personal data from European Union Member States to third countries.

In the proceedings in question, the Irish High Court made a request for a preliminary ruling based on the request of the Data Protection Commissioner (the Irish supervisory authority) to assess the validity of Decision 2010/87, which had been challenged by Maximillian Schrems before said authority.

By the decision at issue the European Commission had established standard contractual clauses for the transfer of personal data to processors based in third countries. Even if the decision was adopted under Directive 95/46, standard contractual clauses still constitute a legal basis for the transfer of data outside the EU under the General Data Protection Regulation where an adequacy decision with respect to the level of protection ensured by a given third country is absent.

According to Schrems’ complaint, the fact that the authorities of the third country of destination are not bound by the standard contractual clauses and can impose obligations contrary to the requirements of such clauses may affect the validity of the decision.

In the view of the Advocate General, instead, the Court of Justice should declare Decision 2010/87 valid as it does not infringe the fundamental rights to privacy, data protection and to an effective judicial remedy enshrined to Articles 7, 8 and 47 of the Charter.

According to the AG, in fact, in case of conflict between the obligations based on the standard contractual clauses and those imposed by the law of the third country of destination, data controllers and the competent supervisory authorities have an obligation to suspend or prohibit a transfer of data.

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