EU and US: New agreement for the transfer of personal data

Following the declaration of invalidity of the transfer of personal data between Europe and the United States, known as Privacy Shield (Privaty Shield) on July 16, 2020 by the Court of Justice of the European Union, in the case of Facebook Ireland vs Scherems, where it was pointed out that the level of protection of data transfers from Europe to the United States for processing in the latter, did not comply with the guarantees of the General Data Protection RegulationThe transfer from that time onwards has been at the mercy of the standard contract terms adopted by the European CommissionThis has created problems for large international companies that process personal data on a large scale, and has led to the need for a data controller established in the European Union and a processor outside European territory.

A good example of this has been the position adopted by Facebook, now META, where it was stated that they would stop providing service to European users as a result of threats of huge penalties, derived from the lack of legal coverage for the transfer and processing of data with guarantees.

Framework for a new agreement

Two years have passed since that well-known resolution of the European Court, in which the representatives of both blocks have not rested to reach an agreement on this issue. Finally, at the end of March 2022, the most awaited announcement was made, a new transatlantic data transfer agreement(Trans-Atlantic Data Privacy Framework) in favor of growth and strengthening innovation, as well as generating conditions for competition in the digital economy for large and small companies.

Thus, in economic terms, according to the President of the United States, the resumption of data transfers between the two blocs will have an economic impact of 7,100 billion dollars, or about 6,450 billion euros.

In this cross-border agreement for the transfer of data between Europe and the United States, privacy and security standards for citizens regarding the processing of their personal data will be respected. In the words of the President of the European Commission, this agreement “will allow the flow of data between the EU and the US in a predictable, reliable way, balancing security, privacy rights and data protection”.

Can we talk about a new Privacy Shield?

So far, no. What currently exists is a pact, an agreement, or the basis at the political level for international data transfers between Europe and the United States to have the level of guarantees of compliance with the European Data Protection Regulation, as required by the European Union, but no further details of what this new relationship will be like and how it will be specifically regulated have been disclosed at this time.

There is still no legal text that regulates the Trans-Atlantic Data Privacy Framework We must therefore wait for it to see the light of day and be analyzed by experts in the field.

Skepticism

In view of the applauded presentation of this transatlantic agreement, voices have already been raised, such as that of Max Scherems (Facebook Ireland vs Scherems case) where they will be very attentive to what the new legal text says, so that if it contains loopholes or weak points like the old Privacy Shield, they will not hesitate to take it to court to obtain its protection.

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