Confusion about the meaning of 'Schrems II' impedes global data flows

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There is a difference between assessing the adequacy of a third country’s laws and assessing impediments in a third country to enforce contracts. The European Commission is assessing whether a third country’s laws are essentially equivalent to the EU General Data Protection Regulation when making adequacy decisions under Article 45 of the GDPR (Article 45 Assessment). 

Data exporters using standard contractual clauses to transfer personal data to a third country are required by Article 46 of the GDPR to assess whether there are legal impediments where the data importer is located to that data importer fulfilling the requirements of the SCCs (Article 46 Assessment). Commentary about “Schrems II” has led to confusion about the differences between the Article 45 and Article 46 Assessments, and that confusion has impacted the free flow of personal data from the European Economic Area. 

When the Court of Justice of the European Union issued its “Schrems II” opinion in July 2020, conventional wisdom was that it required the data exporter

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