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The European Court of Justice (ECJ) is expected to rule on Case C-362/14 (the “Schrems” case) on October 6, 2015.  In deciding whether to reject or adopt its Advocate General’s recommendation to invalidate the US-EU Safe Harbor, the ECJ finds itself between the proverbial rock and a hard place. Rejecting the Safe Harbor would lead to uncertainty in the ongoing negotiations to update the Safe Harbor framework, and raise questions about the interpretation of the proposed General Data Protection Regulation, which is currently being finalized in trialogue negotiations among the EU’s Council, Parliament and Commission.  If the ECJ chooses not to take the bait – whether on substantive or procedural ground — and to preserve the Safe Harbor status quo, that decision may actually strengthen the Safe Harbor by intimating that the ECJ believes the Safe Harbor to be valid in its current form, and significantly weaken the position of certain DPAs and other European regulators and legislators who have been assailing the framework over the years.  

Setting aside the practicalities of the decision and its politics, however, there appear to be strong legal grounds for the ECJ not to follow the Advocate General’s recommendation to declare the Safe Harbor invalid.  Most importantly, the Advocate General’s recommendation went far beyond the questions the Irish High Court referred to the ECJ, and his grounds for recommending that the Safe Harbor be declared invalid are legally suspect.

On September 22, 2015,  the European Court of Justice (“ECJ”) Advocate General issued an advisory Opinion in Case C-362/14 (the “Schrems” case). A key recommendation was for the ECJ to declare the EU/US Safe Harbor Agreement invalid. It remains to be seen whether the ECJ will follow this recommendation. The controversial nature of the Safe Harbor recommendation makes predicting whether the ECJ will follow the Opinion virtually impossible. A possible mitigation of the massive impact on trans-Atlantic trade such a finding would have may be that any invalidity that the ECJ identifies in its ultimate decision is met by the revisions to the Safe Harbor framework that is currently being negotiated. It is likely that the Opinion will encourage the European Commission to harden its stance in the ongoing negotiations with the US, or to delay concluding those negotiations until the ECJ issues a decision in Schrems, so as not to put the updated Safe Harbor Agreement at odds with such a decision.