06.11.2015

EU Commission: Guidance on the Transfer of Personal Data from the EU to the USA

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL [pdf] on the Transfer of Personal Data from the EU to the United States of America under Directive 95/46/EC following the Judgment by the Court of Justice in Case C-362/14 (Schrems)
Press release; excerpts from the Q&A:
Why is the Commission issuing a Communication?
As long as the negotiations are not finalised, companies need to comply with the ruling and rely on alternative transfer tools where available. The Commission's explanatory communication analyses the consequences of the judgement and sets out the alternative mechanisms for transfers of personal data to the US. The Commission will also continue to work closely with the independent data protection authorities to ensure a uniform application of the ruling.
What can companies use instead of the Safe Harbour?
In the meantime, before the reviewed Safe Harbour is agreed, transatlantic data flows between companies can continue to flow using other mechanisms for international transfers of personal data available under EU data protection law.
These other mechanisms include:
  • Standard contractual clauses with companies across the Atlantic, which specify data protection obligations and are approved by the Commission.
  • Binding Corporate Rules for transfers within a multinational corporate group, and which are approved by national DPAs.
Data protection rules also include derogations under which data can be transferred on the basis of:
  • Conclusion or performance of a contract [including pre-contractual situations, e.g. in order to book a flight or hotel room in the U.S., personal data may be transferred;
  • Establishment, exercise or defence of legal claims;
  • If there is no other ground, the free and informed consent of the individual. 
Where do the negotiations towards a safer Safe Harbour stand?
On the Recommendations on transparency, enforcement and redress (1 to 11), there is agreement in principle, but the Commission is still discussing how to ensure that these commitments are binding enough to fully meet the requirements of the Court. [...]