Schrems II And Standard Contractual Clauses – The Advocate-General's Opinion

The Opinion of Advocate-General (AG) Henrik Saugmandsgaardøe in the “Schrems II” case (C-311-18) was delivered on 19 December and will likely leave organisations, which currently rely on EC Commission-approved standard contractual clauses to ensure adequate protection for personal data that they transfer internationally heaving a collective sigh of relief, at least for the moment.

Although not binding on the CJEU, the AG’s Opinion, which suggests that Commission Decision 2010/87/EU on standard contractual clauses for the transfer of personal data to processors established in third countries (SCCs) is valid, may well be indicative of the future validity of SCCs – arguably the most commonly adopted safeguard to ensure adequate protection for personal data transferred outside the EU. Having said that, interestingly, the Opinion also suggests that data controllers (and supervisory authorities) will be obliged to suspend or prohibit international personal data transfers