Schrems-II judgment opens door for complaints on EU-US transfers

Max Schrems, the defendant in the proceedings which formed the basis for the Schrems II judgment, directly responded to the judgment. On his not-for-profit organization’s (NOYB – European Center for Digital Rights) website, he provided sample inquiries for companies as well as data subjects, which they can send to data processors and data controllers. The templates are used to request information on how the respective companies secure the transfer of data to third countries following the judgement.

Now the organization has filed 101 complaints with the relevant supervisory authorities against EU controllers that use Google Analytics and Facebook Connect integrations on their webpages. The affected controllers include large international companies from various business sectors. The complaints are identical in content. NOYB argues that the use of the Google and Facebook services requires the transfer of personal data to the USA. The parties, however, failed to implement adequate safeguards when continuing to transfer data to the US. Based on these arguments, NOYB requests that the authorities fully investigate the complaint and immediately impose a ban or suspension of any data transfers from the data controllers to Google and Facebook in the US and order the return of such data to the EU or another country that provides adequate protection. In addition, the supervisory authorities shall impose fines on the data controller as well as Google and Facebook.

It remains to be seen how the supervisory authorities deal with the complaints. Given their individual responsibilities, there is no obligation for the various EU regulators to develop a coordinated consolidated approach. Instead, it is possible that there will be different reactions from the authorities in the individual proceedings: In their initial comments, the supervisory authorities had expressed very different views on the Schrems II judgment. While some authorities stated that a transfer to a third country based on SCC alone was considered inadmissible, others took a much less strict view. The varying opinions will probably also be reflected in the responses to the complaints.

In any case, the complaint procedures and the resulting reactions of the supervisory authorities may serve as a guideline for other controllers and processors as to which measures must be taken in future to lawfully transfer data to third countries, especially the US.