ARTICLE 29 DATA PROTECTION WORKING PARTY

the Ombudsperson is carried out, it is explained that the Privacy Shield Ombudsperson “will
work closely with other United States Government officials, including appropriate
independent oversight bodies” 63 , and more specifically, “will be able to coordinate closely
with the ODNI, the Department of Justice, and other departments and agencies involved in
United States national security as appropriate, and Inspectors General, Freedom of
Information Act Officers, and Civil Liberties and Privacy Officers” 64 . This coordination shall
be such to ensure that the Privacy Shield Ombudsperson can send a response including the
confirmations as described above.
3.5.3.2 The assessment of the new Ombudsperson mechanism
The Working Party acknowledges the efforts made by the European Commission and the U.S.
Government to introduce a new mechanism with a view to improving the possibilities of legal
redress regarding U.S. surveillance activities. It understands that the assessment of this
mechanism, as a novelty in international relations regarding signals intelligence or national
security, is of particular importance.
In this section, the WP29 will assess how the establishment of the Privacy Shield
Ombudsperson relates to the necessary requirements for individuals to seek legal redress, as
have been laid down in the Charter, the ECHR and the jurisprudence of the European courts.
3.5.3.3 Can the establishment of an Ombudsperson per se be sufficient?
To start with, it needs be questioned whether the establishment of an “ombudsperson” can
ever be considered to be in compliance with Article 47 Charter – which mentions an effective
remedy before an impartial tribunal 65 – at least if no other avenue is available to seek effective
legal redress. This is important because the CJEU, in Schrems, in its important consideration
95, refers to Article 47 Charter, and it does so without giving any indication that Article 47 is
supposed to be understood with modifications in the context of surveillance measures. On the
contrary the CJEU already applied Article 47 Charter in the Kadi II case 66 to measures of
surveillance respectively of national respectively international security 67 .
The jurisprudence of the ECtHR however makes very clear that legal redress to ordinary
courts is not a condition to consider surveillance schemes to be compliant with Article 8 (and
Article 13 of the ECHR). 68 Rather, the Court has developed under Article 8, as a necessary
safeguard to surveillance activities, that redress before other authorities can be in order. The
63 Privacy Shield Annex III, section 2.a
64 Privacy Shield Annex III, section 2.a
65 In the Explanations Relating to the Charter of Fundamental Rights, it is moreover stated that article 47 should be
interpreted as providing a guarantee to the right to an effective remedy before a court (Explanation relating to the Charter of
Fundamental Rights, Explanation on Article 47 (2007/C 303/02)).
66 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, European Commission and United Kingdom v. Kadi, 18 July 2013
67 Kadi II §97 and 100: all Union acts, including those that are designed to give effect to resolutions adopted by the Security
Counsel under Chapter VII of the Charter of the United Nations, are under review of lawfulness by the Courts of the
European Union (Chapter VII is related to action with respect to threats to the peace, breaches of the peace, and acts of
aggression).
68 Article 13 of the ECHR obliges Member States to ensure that “everyone whose rights and freedoms (…) are violated shall
have an effective remedy before a national authority”. This does not necessarily need to be a judicial authority, as the ECtHR
has clarified in Klass §56 and 67.
46