European Union states can block the transfer of Facebook subscriber data to servers located in the USA. It is the conclusion of the advocate general of the European Court according to which the decision of the European Commission to consider "adequate the protection of personal data in the United States" is not valid.
According to Advocate General Yves Bolt, the existence of a decision by the EU Commission which declares that a third country guarantees an adequate level of protection for the personal data transferred "cannot elide or even reduce the powers available to the national supervisory authorities pursuant to the directive on the processing of personal data".
The Advocate General considers that the powers of intervention of national supervisory authorities, given the importance of their role in data protection, must remain intact. And even if the national supervisory authorities are legally bound by the Commission's decision, the Community executive "does not have the competence to limit the powers of the national supervisory authorities".
The Advocate General of the European Court also considers that the access of the US intelligence services to the transferred data constitutes an interference with the right to respect for private life and the right to the protection of personal data, which are guaranteed by the Charter.
Similarly, the fact that it is impossible for citizens of the Union to be heard on the question of the interception and control of their data in the United States represents, according to the Advocate General, an interference with the right, protected by the Charter, of every citizen of the Union to effective defence. In the opinion of the Advocate General, such an interference with fundamental rights is contrary to the principle of proportionality, above all because the control exercised by the US intelligence services is massive and not targeted.
