Will We See a "Safe Harbor 2.0" Soon?

[Commentary] At first I expected the European Commission to patch the current safe harbor within weeks or months. This is also the approach the European Commission is currently working on. After a second review of the European Court of Justice's (ECJ) judgment, it will be very hard to come up with a solution that addresses all problems identified by the Court, given the US position. It also seems questionable if a "Safe Harbor 2.0" will have real benefits for US controllers in practice compared to transfer methods under Art 26 of Directive 95/46.

It will be very interesting to watch the dynamics in the coming months. After thinking through the options under the ECJ ruling, it seems that the intended “quick fix” will hardly lead to a new Safe Harbor that provides the necessary legal certainty for controllers. Minding that the two parties have debated for two years to not even get the (very weak) “13 recommendations” program by the European Commission done, it seems a switch to “alternative” transfer methods under Art 26 will be more reasonable than hoping for a Safe Harbor 2.0.