German authorities slam draft Privacy Shield – Call for new legal remedies to challenge Commission decision

The draft EU-US Privacy Shield does not ensures an adequate level of protection for data transfers to the USA. That’s one conclusion of a new resolution (dated 20th April 2016, German) by the Conference of independent German data protection authorities (“Conference”).

Last week, the European data protection authorities (the Article 29 Working Party) published their critical “Opinion 01/2016 on the EU – U.S. Privacy Shield draft adequacy decision” (PDF).

Now, also the German authorities publicly voice their concern. According to the resolution, the Conference shares the comprehensive analysis and supports the call on the EU Commission to make substantial improvements before adopting the adequacy decision contained therein. Specifically, the Conference holds that it

believes that the “EU-US Privacy Shield” in its current form is not sufficient to ensure the “adequate level of data protection” required for the transfer of personal data to the United States.

Furthermore, the Conference requests the German legislator to create, as soon as possible, a new legal remedy for data protection authorities to challenge adequacy decisions by the EU Commission in front of national courts in order to initiate a request for a preliminary ruling to the European Court of Justice (ECJ).

According to the resolution, the reason for the request of the Conference is the presentation of the draft EU-US Privacy Shield.

In the Safe Harbor judgment (C-362/14) of 6 October 2015, the ECJ hold that national supervisors must be able to engage in legal proceedings, where the national supervisory authority considers that the objections advanced by a person who has lodged with it a claim concerning the protection of his rights and freedoms in regard to the transfer of his personal data to a third country based on an adequacy decision are well founded. The ECJ ruled:

It is incumbent upon the national legislature to provide for legal remedies enabling the national supervisory authority concerned to put forward the objections which it considers well founded before the national courts in order for them, if they share its doubts as to the validity of the Commission decision, to make a reference for a preliminary ruling for the purpose of examination of the decision’s validity.

Whether such a legal remedy exists in Germany, is at least “doubtful”. That’s how the state of Hamburg describes the situation in a proposal to create such a new legal remedy. Therefore, at the next meeting of the German Federal Council (Bundesrat), on 22 April 2016, Hamburg will propose to demand the federal government to make appropriate changes in legislation at the federal level in administrative law. The request is available (PDF, German) on the website of the Federal Council.

This new resolution seems to show that German authorities already now prepare themselves for possible legal challenges against a future adequacy decision by the EU Commission. It will be interesting to see if the proposal by the state of Hamburg will be adopted in the Federal Council.

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