The Commission must suspend the Safe Harbor!

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23 September 2015 – In his opinion, the advocate general of the European Union Court of Justice, Yves Bot, argues that the Safe Harbor agreement, which allows the transfer of personal data of European citizens to the United States is “invalid”. Thus, he confirms what the civil society and the European Parliament continuously asserted: the Commission must suspend immediately this agreement which infringes the fundamental rights of European citizens.

The transfer of European citizens’ personal data to a third country is allowed only when the country in question ensures an “adequate level of protection”. Regarding the United States, the level of protection is considered as satisfactory since 2000, when the European Commission has adopted a decision allowing the transfer of personal data to companies based on the American soil.

In 2013, just after the numerous revelations made by Edward Snowden, an Austrian citizen lodged a complaint with the Irish Data Protection Commissioner claiming that, in light of the mass and indiscriminate surveillance made by American intelligence services, the United States no longer provide an adequate protection. In consequence of this complaint, the Court of Justice of the European Union will have to rule on the validity of the Safe Harbor agreement in the next few months. Today, the opinion of the advocate general prefigures what could become a historic judgement with multiple implications.

Firstly, the opinion of Yves Bot puts back the supervisory authorities at the centre of the debate. In substance, he says that because they are independent, these authorities must be able to investigate and, if necessary, to suspend the transfer of data to a third country not providing an adequate level of protection (§120 of the opinion). He considers furthermore that an adequate level of protection must be “essentially equivalent to that afforded by” European law (§ 141)and hence, an independent authority of control should exist, which is not the case within the Safe Harbor (§§ 145 & 208).

The lack of an independent authority of control actually constitutes a loophole in the application of the right to the protection of personal data guaranteed by article 8 of the Charter of fundamental rights of the European Union. Moreover, in Yves Bot’s opinion, the safe harbor also infringes article 7 of the Charter concerning the right to private and family life because of the “indiscriminate surveillance […] inherently disproportionate” by US intelligence services.

Together with the points listed above and to the fact that the advocate general reaffirms what the European Commission had itself pointed out that European citizens do not have the right make that an effective remedy in the framework of the US surveillance programs (§ 212), the Safe Harbor agreement goes against at least three Fundamental Rights! On the matter, the advocate general accuses the Commission considering that “given such a finding of infringements of the fundamental rights of citizens of the Union, […] the Commission ought to have suspended the application of” the safe harbor (§ 217). Due to the lack of such a decision, Yves Bot simply asks the Court to invalidate it.

AEDH agrees with this indictment and strongly calls on the Commission to suspend, the application of the safe harbor without waiting for the final decision of the Court. It is only through this action that the fundamental rights of European citizens will be respected.

For further information:

CJEU’s press release

Advocate general’s opinion.


Compte AEDH