Why is Safe Harbour II such a challenge?

It seems baffling to many outside the Brussels bubble – and certainly our friends across the Atlantic – that reaching a revised Safe Harbour deal has proved so difficult.

Part of the problem is Europe. The United States was able to negotiate a questionable deal with the EU to gain access to financial transaction data (the TFTP agreement) and only had to deal with a highly deferential letter from Commissioner Malmström when the Snowden revelations indicated that the deal was being abused.

When the United States wanted long-term storage of air passenger data, the EU caved in completely to US demands and agreed to 15-year long data storage. That deal remains in place, despite of being patently illegal – as proven by the fact that the European Court of Justice overturned the EU’s Data Retention Directive and by the fact that the Commission now considers that 5 years of passenger data retention to be sufficient (i.e. if 5 years is enough, 15 years is clearly far too much).

And let’s not forget that the EU also agreed to the original Safe Harbour deal, although many experts believed that it was illegal.

If, over the past 17 years, the EU caved in and accepted a questionable deal on financial data, if it then ignored evidence that the deal was not being respected, if it accepted and still maintains an illegal deal on passenger data, if it accepted the illegal Safe Harbour deal, it would seem entirely rational and logical that the United States would negotiate on the basis that the EU would cave in again.

That assessment appears to be wrong in this case, as the consequences of a deal that fails to respect the law would be felt more quickly and the range of manoeuvre available to the Commission is narrower.  Generally, as we see with Safe Harbour and the Data Retention Directive, for example, it takes so long for the Court to catch up, that the Commissioner responsible will have left office, so there are no political consequences. Safe Harbour is different.

A new illegal deal would have even worse transatlantic consequences than we are facing at the moment, making the consequences more meaningful. Politically, legally and economically, the Commission needs to ensure that it is able to put forward a credible defence before the Court. It would be grossly reckless for the European Commission to treat this as a political negotiation, and up until this weekend, it has laudably not done so.

Furthermore, while the European Commission frequently seeks solace in semantics (“what does ‘genuinely necessary’ really mean?”) in order to avoid fully respecting Court rulings, the Safe Harbour ruling is very clear in not giving room for manoeuvre. Also, due to the inevitability of the Court being asked to rule on any new deal, the scope for the Commission to play for time is severely limited.

This unique situation has led to the two sides in the Safe Harbour II negotiations simply not hearing each other. The United States – logically in the historical context – has been proposing elaborate political spin and elegant, but ultimately specious, explanations of what a deal could look like – in a manner that has always worked before. Meanwhile, the European Commission has been explaining that this negotiation is different. This, too, however, sounds like a negotiating tactic. “Why do they not understand?” both sides ask, infuriated that the other side won’t accept to move forward based on their version of the political and legal context.

As a result, the only possible deal that is immediately available is where the European Commission agrees a politically expeditious but legally untenable deal, creating a time bomb rather than a durable deal, to the benefit of no one. In absence of reforms before an agreement, individuals’ fundamental rights would remain under threat. The political arm wrestling which led us nowhere must end. Discussing legal solutions to a legal problem is the only viable path to agreeing to a robust data transfer agreement.