The Schrems Case
The CJEU’s decision “Schrems v. Commissioner” has been hailed as an epochal event in the history of data protection and privacy in Europe. What did the judges actually say? What does their decision entail? How to move on? Legal experts from both sides of the Atlantic discuss the merits and implications of this momentous decision.
The overall message looks puzzling. First, privacy is a super-fundamental right that reigns supreme above all other rights after the Court’s decision in Schrems. Second, national electoral rules governing the right to vote in elections to the European Parliament come under the scope of application of the Charter, but Member States can restrict such a right as long they do so in a proportionate way, says the Court in Delvigne. And third, illegal immigrants who have already been ordered to abandon the territory of the EU can be subject to criminal prosecution if they ever return, according to the Court in Celaj. In sum, Privacy is a super-fundamental right. The right to vote is quite super, but not as much. The rights to liberty and free movement are not super at all, at least when they concern third country nationals. Is this the kind of case-law one would expect from a fundamental rights court? Does this make any sense at all? Maybe it does.
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Just like Star Wars, the "Solange" saga about German constitutional order’s approach to fundamental rights protection in the context of European integration appeared as a story told and settled. But now there are rumours that in Germany Solange Episode III is in the making, with a release date around 2016. The ECJ’s Schrems decision will bring some turmoil to the Solange Episode III production in Germany.
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In Schrems the CJEU has declared the Safe-Harbor-Decision of the European Commission invalid whilst strengthening the EU fundamental rights. The Court has done so with astonishing clarity. Although the matter is about Facebook Ireland’s transfer of data to servers of Facebook, Inc. in the U.S., it, ironically, will not be Facebook but companies of the European “old economy” that will have to face severe consequences in the aftermath of this landmark judgement. In many cases of every day data processing in the business world, the consent of data subjects will be impossible to obtain. It is at the same time nearly impossible to prevent data to be transferred outside the EU. Hence, a vast number of data processing operations which were lawful before Schrems are now illegal.
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By and large the possibility of challenging mass surveillance worldwide can be strengthened by two factors. Perhaps counter-intuitively, the first should be the support of the business community. The second is democracy.
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The Schrems judgment of the ECJ has implications for the viability of the commercial practices of Internet giants (and minions), for the legality of state surveillance practices and for the future sustainability of an Internet that is global rather than parochial. It is thus not surprising that the Court of Justice of the EU delivered its judgment only one week after the Opinion of the Advocate General and that this judgment has attracted so much academic and media attention, including through the existing commentary on this blog. In adding to this commentary, I shall not rehash the well-versed facts but shall focus on three points which I found striking.
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On Tuesday, the Grand Chamber of the Court of Justice of the European Union declared the Commission’s US Safe Harbour Decision invalid. The Court’s ruling in Case C-362/14 of the Austrian Internet activist Maximillian Schrems v the Irish Data Protection Commissioner is a milestone in the protection of European fundamental rights, but it also preserves space for different national supervisory standards and national discretion on whether data may actually be transferred. Is the ruling opening the way for a patchwork of national data protection? How does this ruling influence the TTIP negotiations?
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The judgment of the Court of Justice of the European Union (CJEU) in Schrems v. Data Protection Commissioner (Case C-362/14) is a landmark in EU data protection law, but one about which I have serious misgivings. While I share the Court’s concern regarding the surveillance practices of the US government (and other governments for that matter) and some of its criticisms of the EU-US Safe Harbor Arrangement, I take exception to its lack of interest in the practical effects of the judgment and the global context in which EU law must operate.
Continue reading >>What is remarkable in the CJEU's Schrems decision is that a) the Court actually identified the intrusion in question as falling under the notion of the essence of privacy – something the European Court of Human Rights has never done under the privacy provision of ECHR Article 8, and b) the identification of an intrusion as compromising the essence of privacy meant that there was no need for a proportionality assessment under Article 52 (1.2) of the Charter. For these reasons, the Max Schrems judgment is a pathbreaking development, a major contribution to the understanding of the structure and legal effect of fundamental rights under the Charter.
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We might celebrate the Court’s decision in Case C-362/14 as an improbable victory of good (data-privacy) over evil (consumer and intelligence data abuses). But I want to offer some words of caution about god-like judicial power.
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