A deep dive into the ‘Schrems II’ case

The so-called ‘Schrems II’ case for possible referral to the Court of Justice of the European Union makes for fascinating reading. This unintended attack on the standard contractual clauses mechanism may turn out to be a legally moot, as it addresses decisions made under the expiring Data Protection Directive and the General Data Protection Regulation allows data protection authorities and the European Commission to fashion such model clauses. However, it does have the potential to impact the credibility of this second of three often-used mechanisms for transferring personal data from the EU to the U. S. In reading though this lengthy opinion, two questions started to resonate again. Specifically, why does the personal data of any EU resident ever need to leave the European Economic Area? And why does the EC keep supporting relatively weak data protection mechanisms such as the Safe Harbor, the Privacy Shield and SCCs?