What Really Sank Safe Harbor?

[Commentary] Not everyone in politics and government are fools, any more than in the private sector. Many must have known about the US National Security Agency (NSA) and its partner agencies' surveillance activities for the 30 to 40 years since they entered the public domain. Yet recently, the European Court of Justice (ECJ) invalidated the Safe Harbor decision, apparently because of the NSA post-Snowden. Or so we have been told many times by many people, not least by Max Schrems. Some are even encouraging us to believe that all we have to do is tell the NSA to play nice and everything will sort itself out with a "Safe Harbor 2.0" agreement. This is a serious logical disconnect, exacerbated in the adequacy context when you consider the well-known fact that the EU member states do not come with anything close to clean hands. Something does not compute here. So let us go beyond the rhetoric.

Fundamental rights always have been a part of European law, embedded albeit vaguely in the treaty itself. However, between 1999 and 2007 they were consolidated and codified as coming into force with the Treaty of Lisbon in December 2009. They effectively imported Winston Churchill's European Convention on Human Rights, to which the EU recently had become signatory. Unlike the Convention, whose effect is only "vertical," against governments, the Charter also can be used "horizontally" in the private sector. It seems to me that the Charter is being wielded by courts in Europe in similar ways to courts in the US wielding the Constitution: that is, to strike down noncompliant decisions of the executive and noncompliant acts of the legislature. This is unprecedented, especially for the UK, in which the last time someone challenged the supremacy of Parliament, 370-odd years ago, they cut his head off.

[Stuart Ritchie is an international/privacy lawyer at Hudson & Co, solicitors, Gray's Inn, London]