Schrems II: Standard Contractual Clauses Are Valid

The Advocate General (“AG“) of the Court of Justice of the European Union (“ECJ“) has recommended that the Standard Contractual Clauses (“SCCs“) should remain a valid mechanism to legitimise the transfer of personal data to third countries. However:

• the AG notes that both companies and regulators need to ensure that there are “sufficiently sound mechanisms” to suspend or prohibit transfers to third countries where there is a conflict between the SCCs and the laws of that third country;
• Whilst businesses can breathe a sigh of release in the short term, there is no guarantee that the ECJ will follow the AG’s recommendation;
• Even if the ECJ does agree with the AG recommendations, those suggest that exporting controllers may be expected to undertake a level of due diligence before exporting personal data.