Ambiguous status of SCC under the ‘Schrems II’ decision


As all privacy community already know, the CJEU has today struck down EU-US Privacy Shield scheme, while confirming the validity of SCC.

Arguments against Privacy Shield has changed little since the ‘Schrems I’ decision that invalidated Safe Harbour – governmental intrusion, lack of proportionality, ineffective role of ombudsperson.

What is really new is that a EU-based data controller relying upon SCC is now expected to assess how public authorities in third countries obtain access to personal data and how legal system in those countries works.

Two questions still remain:

1. How such controllers in question are expected to conduct such evaluation? Any methodology in this regard? It may seem somewhat similar to what we have in Article 45(2) – which factors Commission shall evaluate when issuing adequacy decisions. However, a private entity living with SCC is not a EU body and often does not have sufficient resources and understanding as to how to conduct the research and put necessary safeguards in place.

2. Enforcement. Amid DPAs facing lack of financial resources and manpower, the CJEU’s decision puts even extra burden on them. Thus, a newly invented (by CJEU) requirement may easily end up becoming unviable with no practical effect due to insufficient oversight.

Bonus question: taking into account the ‘accountability’ principle, how exporting controllers should demonstrate their compliance with the new obligation?

Hopefully, answers are yet to come.

3 thoughts on “Ambiguous status of SCC under the ‘Schrems II’ decision

  1. I remember when Safe Harbour was invalidated, ensuing panic, and in fact a pregnant period of wait until Privacy Shield came into effect. During that period personal data was being transfered over to the U.S. with no legal mechanism, no adequacy decision. So the question is, should we stop using all applications which are using Privacy Shield right now… no. One should investigate alternatives, not to panic….. yet…. and yes to see what answers are yet to come….for myself as CEO of Privasee I need to shoot out some emails to those businesses which are using Privacy Shield to see what they are doing.. if they are aware.

    Liked by 1 person

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