French lawmaker announces intention to challenge the EU-US Data Privacy Framework
Late last week, a member of French parliament, Philippe Latombe, announced that he has applied to the EU’s General Court to seek an annulment of the EU-US Data Privacy Framework (the DPF), which was approved by the European Commission last July. If successful, the challenge would significantly encumber transatlantic data transfers.
The DPF provides a legal framework for the transfer of personal data between the EU and the US. It was implemented following months of negotiations between the EU and Washington, after the previous framework governing EU-US data transfers, known as the “Privacy Shield”, was struck down by the European Court of Justice in 2020.
Mr Latombe is a member of Macron's allied party, MoDem, but has stated he intends to bring this challenge solely in his personal capacity.
Applications
Mr Latombe indicated the application is being brought under Article 263 of the Treaty for Functioning of the European Union - which allows EU private citizens to seek the annulment of the actions/decisions taken by EU institutions.
Article 263 applications are made directly to the EU’s General Court. As such, it represents a faster and more direct route to challenge EU actions, as it avoids the requirement of going through the preliminary reference procedure via a Member State court, which can be impeded by local litigation delays.
Under Article 263, the General Court may annul a contested action if one of four grounds has been established by the applicant:
- Lack of competence.
- Infringement of an essential procedural requirement.
- Infringement of the treaties or of any rule of law relating to their application
- Misuse of powers by the EU institution.
In his statement during the week, Mr Latombe indicated that he considered the DPF to be the product of a flawed negotiation and consultation process, the implementation of which failed to comply with certain procedural rules and which ultimately failed to appropriately protect the fundamental rights of EU citizens.
An application for annulment under Article 263 does not automatically suspend the application or effect of the contested act. Accordingly, together with his application to annul the DPF, Mr Latombe has also separately applied for an interim measure, to suspend the DPF pending the General Court’s full hearing of his Article 263 challenge.
Obstacles to the Applications
Due to the impactful nature of an Article 263 application, the EU Courts generally set a high threshold to establish standing to bring such a claim. An applicant must, at a minimum, show that the contested action is of “direct concern” to them - which generally requires an applicant to demonstrate that the act has had a significant impact on their legal situation. It remains to be seen if Mr Latombe will be able to meet this high threshold in respect of standing.
If Mr Latombe can establish standing, he will then need to establish one of the four grounds for annulment listed above.
In respect of his application for interim relief, Mr Latombe must satisfy stringent criteria. In practice, interim measures are rarely granted, especially in circumstances where the granting of the interim measure requested suspension would have such a significant commercial impact.
We will be monitoring the case closely and will bring further updates as the case develops.
For more information, please contact John Cahir, Partner or another member of the ALG Commercial & Technology team.
Date published: 12 September 2023