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Mayer Brown discusses EU and US Agreement on Scheme to Replace Safe Harbor: EU – US Privacy Shield

In October 2015, the Court of Justice of the European Union (“CJEU”) held that transfers of personal data from Europe to the United States made under the so-called US Safe Harbor scheme were invalid as those transfers did not ensure an adequate level of protection under European data protection law.

In the aftermath of that decision, the Article 29 Working Party, the organisation that represents the data protection authorities of the European Union, set 31 January 2016 as the deadline by which the representatives of the European Union and the United States had to find solutions to address the significant risks identified by the CJEU with respect to the transfer of personal data to the United States. At the time, the Article 29 Working Party made it clear that if no appropriate solution was reached with the United States by the deadline, European data protection authorities were committed to take all necessary and appropriate actions, which might include taking coordinated enforcement action. That deadline has now expired.

On 2 February 2016, the European Commission announced that it had reached a high level agreement on a series of measures with the United States to resolve the issues identified in the CJEU’s ruling. These are as follows:

The European Commission anticipates that it will take three months for European and United States authorities to finalise and put in place the arrangements that have been agreed, meaning that the EU – US Privacy Shield scheme should be implemented in May 2016.

Following the announcement and its discussions with the European data protection authorities in the next few days, the European Commission intends to adopt a decision that confirms that processing of personal data in the US by organisations that are certified under EU – US Privacy Shield, once implemented, will be deemed to be adequately protected in accordance with European data protection law.

The full memorandum was originally published by Mayer Brown on February 3, 2016, and is available here.

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