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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">https://curia.europa.eu/jcms/uplo... The Court& #39;s official press release is here: https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-07/cp200091en.pdf">https://curia.europa.eu/jcms/uplo... (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& #39;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">https://curia.europa.eu/juris/doc... 3/
This is the second time that the ECJ has struck down the 
https://abs.twimg.com/emoji/v2/... draggable="false" alt="🇪🇺" title="Flagge der Europäischen Union" aria-label="Emoji: Flagge der Europäischen Union">https://abs.twimg.com/emoji/v2/... draggable="false" alt="🇺🇸" title="Flagge der Vereinigten Staaten" aria-label="Emoji: Flagge der Vereinigten Staaten"> 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">https://curia.europa.eu/juris/doc... 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& #39;s #GDPR by @MargotKaminski and @MegLeta for US lawyers: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3620198">https://papers.ssrn.com/sol3/pape... 6/
The ECJ& #39;s decision is a European decision and needs to be understood as such. This is particularly striking in three ways: a) the Court& #39;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& #39; 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& #39;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">https://www.bundesverfassungsgericht.de/SharedDoc... 12/
Re c): US lawyers used to the eloquent prose of #SCOTUS justices will frown upon the Court& #39;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& #39;s decision. 13/
In this context, it is noteworthy that the ECJ cites the referring court& #39;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& #39;s own statements to strike down the EU Commission& #39;s adequacy finding. See paras 181, 183, and 193. 15/
I will write a separate thread about the decision& #39;s impact on transatlantic data flows going forward. 16/end
