TRASFERIMENTI INTERNAZIONALI DI DATI PERSONALI E CLAUSOLE CONTRATTUALI TIPO DOPO SCHREMS II: TRA REGOLAZIONE, AUTOREGOLAZIONE E ACCOUNTABILITY DELL’ESPORTATORE

The contribution addresses the impact of the judgement of the Court of Justice in the Schrems II case on compliance obligations of exporters relying on the tool of standard contractual clauses in order to transfer personal data outside the EEA. Indeed, having the Court declared the invalidity of the adequacy decision relating to the transfer of personal data towards USA (Privacy Shield), the tool of standard contractual clauses gains a central role in the regulation (or self-regulation) of international transfer of personal data over the ocean. After illustrating the main aspects of the discipline applicable to such transfers, the contribution highlights the key-elements of the reasoning of the Court relating to the declaration of validity of the Decision 2010/87/UE on standard contractual clauses. It is pointed out that the Court seems to transfer on operators the duty (traditionally performed by the Commission) of assessing the adequacy of the legal system of the Country of destination, yet with limited reference to the powers of public authorities to access personal data stored on their territories. If this seems coherent with a construction of the applicable rules inspired to the maximum protection of human rights of interested individuals, and thus strengthens the process of “constitutionalization” of mass surveillance mechanisms, the impact of the judgment on competitivity of European industry remains uncertain.