Thursday 19 December 2019 4:46 pm

Facebook’s transfer of EU citizen data to US legal, says EU court adviser

Tools used by hundreds of thousands of companies to transfer EU citizens’ data abroad are legal, an adviser to Europe’s top court has ruled, marking a major win for Facebook in a long-running court case. 

Austrian privacy campaigner and lawyer Max Schrems had challenged Facebook over its use of standard contractual clauses to move electronic information across the EU’s borders. 

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But in a non-binding opinion issued today the advocate general at the European Court of Justice (CJEU), Henrik Saugmandsgaard Oe, said the clauses were legal as they offer sufficient privacy protection.


“Standard contractual clauses for the transfer of personal data to processors established in third countries is valid,” he wrote.

CJEU will rule on the case in the coming months. European judges follow court advisers’ recommendations in four out of five cases.

The outcome of the case could affect thousands of standard contractual clauses used by Facebook — as well as most other companies in the EU —  to move electronic information out of the bloc.

The advocate general also issued an opinion on whether the Privacy Shield, which was launched in 2016 to protect Europeans’ personal data when it is transferred across the Atlantic for commercial use, is lawful. 

In his opinion, he appeared to sympathise with Schrems’ concerns about the measure “in the light of the right to respect for private life and the right to an effective remedy.”

Schrems had previously fought and won a case against the EU’s previous Safe Harbour privacy rules, which found that the previous trans-Atlantic data protection rules were invalid. 

“There will be a collective sigh of relief throughout the business community at the non-binding opinion of the advocate general,” said KPMG’s Mark Thompson.


Thompson, who leads the firm’s Privacy Advisory Practice, said the case “had the potential to significantly increase the administrative burden on EU based businesses transferring data internationally – a practice which is common across almost all sectors and sizes.”

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Tech UK deputy chief executive Antony Walker said the opinion “will be welcomed by European businesses across all industries and sectors transferring data outside of the EU.”

“The opinion is particularly important for UK [firms] that have invested heavily in putting SCCs in place to ensure that data can continue to flow between the UK and the EU after Brexit,” he continued.

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