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EU-US data deal incompatible with EU law and fundamental rights - European Parliament legal service
15 February 2016
This afternoon (15 February) MEPs in the European Parliament's civil liberties committee will discuss the proposed EU-US "Umbrella Agreement" on the protection of personal data exchanged for the prevention, investigation, detection and prosecution of criminal offences. In a confidential opinion obtained by Statewatch, the Parliament's legal service has made clear that the proposed agreement is incompatible with EU law and fundamental rights.
One of the conclusions reached by the legal service is the following:
"The EU-US Umbrella agreement is not compatible with primary EU law and the respect for fundamental rights, in so far as it seeks to provide, in Article 5(3), for an alternative form of "adequacy decision" for transfers of personal data from the EU to the US, falling within the scope of this agreement, relating to all persons covered by EU law, despite the fact that this is based on only a limited obligation of the US to provide for the right of only EU citizens to seek judicial redress in the US, thereby excluding all non-EU citizens who are covered by EU law from the benefit of any right to seek judicial redress in the US."
The opinion is dated 14 January 2016 and is a response to a request from Claude Morales MEP, chair of the civil liberties committee, who in November 2015 asked the legal service to answer three questions on the proposed agreement.
The passing of the Judicial Redress Act in the US has been cited as one of the prerequisites for the EU signing the data deal - but although the law has now almost been passed, it "fails to extend Privacy Act protections to non-U.S. citizens," and "coerces European countries to transfer data to the US, even without adequate protection, or be denied legal rights,"
according to the Electronic Privacy Information Center (link).
See:
European Parliament legal service: Legal opinion: EU-US Umbrella agreement concerning the protection of personal data and cooperation between law enforcement authorities in the EU and US (pdf)
European Parliament legal service: Note for the attentionof Mr CLAUDE MORAES (pdf)
Background: EU-USA "Umbrella" agreement on the exchange of personal data (Statewatch News Online, September 2015)