Independent analysis of the draft EU-US Adequacy decision

Foreword to Linklaters’ analysis of draft US adequacy decision

EU-US trade is worth over €1 trillion and supports 16 million jobs on both sides of the Atlantic. The US is still by far the EU’s largest trade and investment partner.[1] Beyond the economic value of our relationship, our partnership with the US is key to solving pressing global health and green transition challenges, and to protecting our shared democratic values in a world that increasingly threatens them.

Ever since the Schrems II ruling,[2] European industry has been needing more legal certainty about data flows to the US, without which no smooth trade can happen in what is now a fully digital economy. A survey we conducted two and a half years ago showed that almost all EU-based businesses across all sectors transfer data to the US, nearly eight out of ten being EU headquartered. The survey showed that the cost of reassessing companies’ data transfers to comply with Schrems II was significant.[3]

In this context, we must now take stock of the negotiations that have led the European Commission and the US government to agree on a new EU-US Data Privacy Framework.[4] To this end, we have commissioned an independent legal analysis to shed more light on some elements of the Commission’s draft adequacy decision that are key in meeting the Schrems II ruling’s requirements.

This analysis leaves us confident that considerable efforts have been made to correct the deficiencies of the previous EU-US framework relating to necessity, proportionality and redress, and that these efforts can meet the legal test established by the EU Court of Justice.

We hope that this analysis can contribute to a fruitful public discussion around the new framework, whose solidity and viability are so critical for European businesses and citizens alike.

References:

[1] https://policy.trade.ec.europa.eu/eu-trade-relationships-country-and-region/countries-and-regions/united-states_en.

[2] Case C-311/18.

[3] Schrems II impact survey report, available at https://www.digitaleurope.org/wp/wp-content/uploads/2020/11/DIGITALEUROPE_Schrems-II-Impact-Survey_November-2020.pdf.

[4] https://ec.europa.eu/commission/presscorner/detail/en/ip_22_7631.