BEERG Newsletter 34 - EU/US transfers: First legal challenge fails… but others will follow

Derek Mooney writes: In BEERG Newsletter No 29 (Sept 14^th 2023) we mentioned that Philippe Latombe, a centrist member of the French parliament, had submitted a legal challenge to the EU/US Data Privacy Framework to the European Court of Justice’s (ECJ/CJEU) General Court. 

We suggested that it was unlikely that the Court would accept his challenge and on October 12^th the Court confirmed (in French) that the President of the General Court had dismissed M. Latombe’s interim application due to the absence of demonstrated urgency.

As we said at the time, M. Latombe’s challenge was made as a private individual under Art 263, claiming that the EU Commission’s adequacy decision that enabled the Data Privacy Framework applied directly to him and would permit the transfer data about him to the US. Art 263 is a fast-track procedure which allows the EU Court to urgently review the legality of EU laws, but it requires the challenger to demonstrate that the matter is of "direct and individual concern" to them.

The General Court President said M. Latombe did not show how the introduction of the DPF would create a worse situation than previously existed, especially as they related to the data transfer options provided in Article 45 of the GDPR. As we observed in September: 

While Latombe’s challenge may falter on the grounds of “standing”, others will be ready to pursue more robustly framed and argued challenges. The question is therefore: will any of them succeed? We have no doubt that the DPF will be subjected to years of wrangling in the EU courts…