Tech & Sourcing @ Morgan Lewis


The European Commission (Commission) is adopting an Adequacy decision for certain transfers of personal data to the United States. This adoption would foster trans-Atlantic data flows and address the concerns raised by the Court of Justice of the European Union’s judgment in the Schrems II case. View our LawFlash on the case and our LawFlash on US President Joe Biden's 2022 executive order (EO) addressing points raised by the court.

As part of this process, the European Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE) recently published its draft resolution opposing the adoption of the Adequacy decision. The draft will likely be voted on in plenary during the week of April 17, 2023. Even if the European Parliament were to endorse this draft by a vote, the Commission would not be bound by it.

The LIBE draft resolution includes several criticisms of the protection of EU personal data in the United States, with particular attention on the 2022 EO.

LIBE Draft Resolution—Takeaways:

  • The principles of proportionality and necessity as key elements of the EU data protection regime and their definitions in the EO are not in line with their definitions under EU law and their interpretation by the Court of Justice of the European Union.
  • These principles will be interpreted solely in the light of US law and legal traditions.
  • The EO requires signal intelligence to be conducted in a manner proportionate to the validated intelligence priority, which appears to be a broad interpretation of proportionality.
  • The EO does not prohibit the bulk collection of data by signals intelligence.
  • The EO does not apply to data accessed by public authorities via other means, e.g., the US Cloud Act.
  • The decisions of the Data Protection Review Court will be classified and not made public or available to the complainant.
  • The United States has no federal data protection law.
  • The EO is not clear, precise, or foreseeable in its application as it can be amended at any time by the US president.

Note that LIBE’s call on the Commission to continue negotiations with its US counterparts may be unrealistic, as the EU diplomats have been closely involved in the creation of the EO.

The draft resolution’s findings raise various concerns—e.g., running afoul of the positive reception by the Hamburg Data Protection Authority, among others—in Europe. It remains to be seen whether the Adequacy decision will result in a non-binding resolution by the European Parliament.