Commissioner Jourová spoke Monday evening (local time), Feb. 1, before the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (Libe), concerning the state of play of the Safe Harbor negotiations.

Jourova struck somewhat a more positive note than what has been reported over the weekend in some European press regarding the status of the negotiations and noted progress in several respects.

Commissioner Jourová’s remarks focused on four areas that must find satisfactory resolution to withstand any future court challenge in the EU:

  • Regarding access to data by public authorities, she noted that there have been important reforms under President Obama, introducing stronger oversight and more transparency. Commissioner Jourová also stated that there will be an annual joint review, which will look at all aspects of the Safe Harbor arrangement, including access to data by public authorities.
  • As concerns independent oversight and individual redress, Commissioner Jourová cited the need to ensure a functionally independent body to answer individual complaints from Europeans if they fear that their personal information has been used in an unlawful way by U.S. authorities in the area of national security. While Commissioner Jourová did not indicate that any solution has been found on this point, she noted that this role could be taken by an Ombudsperson with a real capacity to act and respond to individual complaints.
  • In terms of resolution of complaints against companies in case of privacy violations, Commissioner Jourová noted the negotiators are working on a “last resort” mechanism to ensure that all complaints can – if not previously resolved – be settled through a binding and enforceable decision. This is essential for Safe Harbor 2.0, said Commissioner Jourová, given that the right to legal remedy is enshrined in the European Charter of Fundamental Rights. She also stated that European Data Protection Authorities must have the possibility to refer complaints (concerning commercial aspects or national security) and to uphold the rights of Europeans. The issue of enforcement authority has been particularly difficult in the negotiations, and Commissioner Jourová’s remark did not shed any light on whether there has been progress.
  • Finally, Commissioner Jourova noted the need for commitments by the U.S. that are formal and binding, entailing signatures at highest political level and publication of the commitments in the Federal Register.