Leaked Extracts on Working Party Opinion Indicate Approval of Privacy Shield May Not Be Imminent

Today, alleged extracts from the impending Article 29 Working Party Opinion on the adequacy of the Privacy Shield were leaked.  These extracts indicate that a number of clarifications on the Privacy Shield documents will be required before the Working Party can confirm that the Privacy Shield, in its view, ensures a level of protection that is essentially equivalent to that in the EU.  The full opinion is due to be published on Wednesday 13 April, and will form part of the package for consideration by the European Commission.

The extracts formed part of an alleged Order from the German Data Protection Authorities (DPAs) addressed to the German representative of the Article 29 Working Party. In the Order, the German DPAs asked the representative to inform the Article 29 Working Party that in the event the Commission approved the adequacy determination without remedying the deficits identified by the Article 29 Working Party, the German DPAs would initiate a number of test claims challenging the adequacy of the Privacy Shield, with the goal of ultimately securing review by the Court of Justice of the European Union (CJEU). The Order further demanded that the Article 29 Working Party review the impact of the Schrems judgment on EU Standard Contractual Clauses and Binding Corporate Rules.

We understand that earlier this week, contrary to this alleged Order, the German government issued a statement supporting the Privacy Shield and confirmed the use of EU Standard Contractual Clauses.