Safe Harbor No More: Impact of the Schrems Case on EU - U.S. Personal Data Transfers

Sammanfattning: This thesis in whole is essentially envisaged to display the evolutionary process of the protection of the right to data protection, with a focus on cross-border data transfers, specifically between the EU and the U.S. post-Schrems case. The Schrems case marks a pivotal moment in the definition of the notion of privacy and data protection in many ways, among which the downfall of Safe Harbor is the most notable one. Finally, the thesis aims to provide a concise overview of the EU – U.S. Privacy Shield. All of this is looked at through the fundamental rights lens of the EU Charter. Are data protection and privacy one and the same? How does the right to data protection balance against other fundamental rights, such as the freedom to conduct business? What was the impact of the Schrems case – aside from striking down Safe Harbor? In relation to that, is the EU – U.S. Privacy Shield a viable solution that provides adequate protection? Divulging the distinction between data protection and privacy is important due to the fact that the two concepts are often treated as one concept, inseparable from one another, both in practice and in academia. Furthermore, the thesis examines the balance between the right to data protection and the freedom to conduct business since the two are in an interesting relationship, as observed from case law. Furthermore, the thesis focuses on the analysis of Safe Harbor, the Schrems case that had it struck down and the upcoming EU – U.S. Privacy Shield. It dissects the Privacy Shield and the European Commission’s draft adequacy decision in order to see whether they do indeed fix the aforementioned flaws. This thesis juxtaposes the Privacy Shield with Safe Harbor and with the criteria set out by CJEU in the Schrems case. As a result of the juxtaposition and analysis, the thesis identifies the strengths and weaknesses of the Privacy Shield, along with finding that the architecture of the Privacy Shield could be ameliorated.