Wanted: LED adequacy decisions

Subtitle:How the absence of any LED adequacy decision is hurting the protection of fundamental rights in a law enforcement context

Since May 2018, the European Commission
(Commission) has the exclusive competence not
only to assess third countries for an adequacy decision
authorizing the international transfer of
personal data to third countries or international
organizations in relation to the General Data
Protection Regulation (GDPR) but also for law
enforcement purposes under the Law
Enforcement Directive (LED). So far, no LED adequacy
decision has been adopted. The complexity and the fragmentation of data
protection within a law enforcement context
complicate the task of the Commission to adopt
a LED adequacy decision. Moreover, in light of
the fact that due to existing international law enforcement
cooperation mechanisms mainly based
on international agreements such as ‘Mutual
Legal Assistance Treaties’ (MLATs), international
data flows for law enforcement appear to continue
‘as usual’, the Commission seems to feel no
urgency to adopt them. This poses the question
why LED adequacy decisions were introduced in
the first place and if the existing framework suffices
for the protection of fundamental rights in a
manner essentially equivalent to the EU as mandated for data transfers by the Court of
Justice of the European Union (CJEU) since
Schrems. My systematic analysis of these questions based
on EU fundamental rights law shows that LED
adequacy decisions are crucial within the EU
data protection system for law enforcement both
from a fundamental rights perspective and from
a systematic and practical viewpoint and that
their absence seriously undermines the protection
of EU fundamental rights.

Publication year:2021

Keywords:LED, adequacy, fundamental rights, law enforcement

BOF-keylabel:yes

IOF-keylabel:yes

BOF-publication weight:6

Authors:Regional

Authors from:Higher Education

Accessibility:Closed