Cjeu's Jurisdiction: Adjudication On Third Country Laws

The Court of Justice of the European Union (CJEU) has stated that it does not pass judgement on the law of third countries. However, it is inevitable that the CJEU will increasingly be faced with data protection cases that require an evaluation of third country law. For example, the Commission indicated in a Communication of January 2017 that it will consider issuing additional adequacy decisions covering countries in East and South-East Asia, India, Latin America, and the European region. In light of the Schrems judgement, challenges to adequacy decisions brought before a DPA or a national court will often result in references for a preliminary ruling to the CJEU.

The Court of Justice of the European Union (CJEU) does not pass judgement on the law of third countries

> We are not judging the U.S. system here, we are judging the requirements of EU law in terms of the conditions to transfer data to third countries, whatever they be.

However, it is likely that the CJEU will increasingly be faced with data protection cases that require an evaluation of third country law. For example, the Commission indicated in a Communication of January 2017 that it will consider issuing additional adequacy decisions covering countries in East and South-East Asia, India, Latin America, and the European region. In light of the Schrems judgment, challenges to adequacy decisions brought before a DPA or a national court will often result in references for a preliminary ruling to the CJEU. Furthermore, the interconnectedness of legal orders caused by globalisation and the internet may also give rise to cases in other areas of law where evaluation of third country law is necessary to answer a question of EU law.

Since in references for a preliminary ruling the determinations of national courts will generally be accepted by the CJEU, and a request to intervene in a preliminary ruling procedure to submit observations on third country law is not possible, there is a risk that a judgment in such a case could be based on an insufficient evaluation of third country law, such as when the evidence concerning such law is uncontested and is presented only by a single party.

The CJEU will increasingly be faced with data protection cases that require an evaluation of third country law

The Court of Justice of the European Union (CJEU) has stated that it does not pass judgement on the law of third countries. However, it is inevitable that the CJEU will increasingly be faced with data protection cases that require an evaluation of third country law. For example, the Commission indicated in a Communication of January 2017 that it will consider issuing additional adequacy decisions covering countries in East and South-East Asia, India, Latin America, and the European region. In light of the Schrems judgment, challenges to adequacy decisions brought before a DPA or a national court will often result in references for a preliminary ruling to the CJEU. Furthermore, the interconnectedness of legal orders caused by globalisation and the internet may also give rise to cases in other areas of law where evaluation of third country law is necessary to answer a question of EU law.

Since in references for a preliminary ruling the determinations of national courts will generally be accepted by the CJEU, and a request to intervene in a preliminary ruling procedure to submit observations on third country law is not possible, there is a risk that a judgment in such a case could be based on an insufficient evaluation of third country law. For instance, the evidence concerning US law in the Schrems judgment of the Irish High Court that resulted in the reference for a preliminary ruling to the CJEU was uncontested.

The interconnectedness of legal orders caused by globalisation and the internet may also give rise to cases in other areas of law where evaluation of third country law is necessary to answer a question of EU law

The Court of Justice of the European Union (CJEU) has stated that it does not pass judgement on the law of third countries. However, it is inevitable that the CJEU will increasingly be faced with data protection cases that require an evaluation of third country law. For example, the Commission indicated in a Communication of January 2017 that it will consider issuing additional adequacy decisions covering countries in East and South-East Asia, India, Latin America, and the European region. In light of the Schrems judgment, challenges to adequacy decisions brought before a DPA or a national court will often result in references for a preliminary ruling to the CJEU.

A judgement in a case could be based on an insufficient evaluation of third country law

The Court of Justice of the European Union (CJEU) has stated that it does not pass judgement on the law of third countries. However, it is inevitable that the CJEU will increasingly be faced with data protection cases that require an evaluation of third country law. For example, the Commission indicated in a Communication of January 2017 that it will consider issuing additional adequacy decisions covering countries in East and South-East Asia, India, Latin America, and the European region. In light of the Schrems judgment, challenges to adequacy decisions brought before a DPA or a national court will often result in references for a preliminary ruling to the CJEU.

Since in references for a preliminary ruling the determinations of national courts will generally be accepted by the CJEU, and a request to intervene in a preliminary ruling procedure to submit observations on third country law is not possible, there is a risk that a judgement in such a case could be based on an insufficient evaluation of third country law. For example, the evidence concerning US law in the Schrems judgement of the Irish High Court that resulted in the reference for a preliminary ruling to the CJEU was in effect uncontested.

Therefore, while the CJEU does not pass judgement on the law of third countries, its rulings may be based on an evaluation of third country law that is insufficient. This could occur when the evidence concerning such law is uncontested and is presented only by a single party.

The Schrems case involved evaluation of US legal standards

The Court of Justice of the European Union (CJEU) has stated that it does not pass judgement on the law of third countries. In an interview with the *Wall Street Journal*, CJEU President Lenaerts said that 'We are not judging the U.S. system here, we are judging the requirements of EU law in terms of the conditions to transfer data to third countries, whatever they be'. However, it is difficult to argue that the Schrems case did not involve an evaluation of US legal standards.

The Schrems case concerned a reference for a preliminary ruling to the CJEU. The Irish High Court had made a judgement in the case, and the evidence concerning US law was uncontested. This judgement resulted in a reference for a preliminary ruling to the CJEU. The CJEU generally accepts the determinations of national courts in references for preliminary rulings. However, it is not possible to request to intervene in a preliminary ruling procedure to submit observations on third country law. This means that there is a risk that a judgement in such a case could be based on an insufficient evaluation of third country law.

The Schrems case is an example of a data protection case that required an evaluation of third country law. The Commission has indicated that it will consider issuing additional adequacy decisions covering countries in East and South-East Asia, India, Latin America, and the European region. This means that the CJEU will increasingly be faced with data protection cases that require an evaluation of third country law. The interconnectedness of legal orders caused by globalisation and the internet may also give rise to cases in other areas of law where an evaluation of third country law is necessary to answer a question of EU law.

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