Thread by @t_streinz, on the EU Court of Justice's judgment in Case C-311/18

on the EU Court of Justice's judgment in Case C-311/18 - Facebook Ireland and Schrems (colloquially #SchremsII): http://curia.europa.eu/juris/document/document_print.jsf?docid=228677&text=&dir=&doclang=EN&part=1&occ=first&mode=lst&pageIndex=0&cid=9799527 (don't be too dissuaded by its length; the Court's substantive reasoning begins only with para 77) 1/x

A PDF version of the judgment has been kindly provided by @NOYBeu: https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-07/cp200091en.pdf The Court's official press release is here: https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-07/cp200091en.pdf (the heading mislabels the Data Privacy Shield as Data Protection Shield - maybe an inside joke?) 2/

It is - as always with ECJ decisions - also worth looking back at the Advocate General's Opinion and to read the judgment in light of / as a response to that Opinion: http://curia.europa.eu/juris/document/document_print.jsf?docid=221826&text=&dir=&doclang=EN&part=1&occ=first&mode=lst&pageIndex=0&cid=9799527 3/

This is the second time that the ECJ has struck down the

arrangement for transfers of personal data. The previous Case C-326/14 is now Schrems I: http://curia.europa.eu/juris/document/document.jsf?text=&docid=169195&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=9835173 4/

There is a lot to be said about this decision. I encourage everyone, particularly US observers, to follow @gabrielazanfir @ANewman_forward @henryfarrell @MargotKaminski @AnupamChander @paulmschwartz @DanielSolove and others steeped in transatlantic data law for informed takes. 5/

I particularly recommend, again, the excellent guide to the EU's #GDPR by @MargotKaminski and @MegLeta for US lawyers: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3620198 6/

The ECJ's decision is a European decision and needs to be understood as such. This is particularly striking in three ways: a) the Court's fundamental rights analysis; b) its discussion of the national security exception; and c) its mode of legal reasoning 7/

Re a): The Court states unequivocally in para 171 that the communication of personal data to third parties (public authorities) interferes with the fundamental rights to privacy and data protection of Articles 7 and 8 of the EU Charter, irrespective of subsequent use. 8/

This kind of fundamental rights analysis contrasts markedly with a torts law framing of privacy which, by definition, has to be concerned with harms. For the ECJ, it is irrelevant whether the individual has been inconvenienced. 9/

Re b): It has been a staple of the US critique since Schrems I that the ECJ scrutinizes US surveillance measures without having the authority to conduct a comparable inquiry into EU member states' intelligence gathering activities 10/

This critique is entirely understandable as a policy argument. But it fails as a legal one. As the Court states clearly in para 81, the national security carve-out only applies to EU member states. 11/

This is a function of the division of competences within the EU. There is arguably nothing the CJEU can do about this. Under the EU's system it is for national constitutional courts to provide protection against member state surveillance. And they do: https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-037.html 12/

Re c): US lawyers used to the eloquent prose of #SCOTUS justices will frown upon the Court's comparatively terse reasoning. The ECJ is expounding the law in a formalist and doctrinal way. You will find almost no recognition of the severe practical impact of today's decision. 13/

In this context, it is noteworthy that the ECJ cites the referring court's findings about the US surveillance practices at length in the descriptive parts of the judgment (paras 58). In contrast to Schrems I, the US government participated in the proceedings. 14/

Indeed, the ECJ relies centrally on the US government's own statements to strike down the EU Commission's adequacy finding. See paras 181, 183, and 193. 15/

I will write a separate thread about the decision's impact on transatlantic data flows going forward. 16/end

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