High Court: Facebook refused stay on reference to Court of Justice of the European Union

About this case:

• Judgment:
  External link

Refusing to grant the stay sought, and ordering that the reference be delivered immediately to the Court of Justice, Ms Justice Costello said that there was no right of appealing a reference to the CJEU (Campus Oil); and that the least injustice would be caused by refusing to grant a stay in circumstances where delays were already inevitable.

Background

In a judgment delivered in October 2017, Ms Justice Costello stated that she intended to make an order for reference to the CJEU pursuant to Article 267 TFEU for a preliminary ruling.

In April 2018, upon delivering her order for reference to The Data Protection Commissioner, Facebook Ireland ltd and Maximilian Schrems; Facebook applied for a stay to enable it to appeal the order for reference.

Ms Justice Costello said that the applicable principles on whether to grant a stay on an order pending appeal were enunciated in Okunade v The Minister for Justice 3 IR 153, and confirmed in CC v The Minister for Justice and Equality 2 IR 680 – in which it was stated that the Court must act so as to minimise the risk of injustice. In CC, Justice Clarke confirmed that the principles in Okunade applied to all stay applications.

Cartesio and Campus Oil

Relying on Cartesio (C-210/06) ECR I-09641, Facebook considered it possible to appeal a decision of a court to seek a preliminary ruling from the CJEU under Art 267 TFEU.

Ms Justice Costello referred to Campus Oil Ltd v Minister for Industry and Energy IR 82, in which it was held that Ireland’s accession to the EEC Treaty meant that the Treaty itself became part of domestic law.

In Campus Oil it was stated that a request for interpretation from the Court of Justice was “not, in any sense, an appeal to a higher court”, but was an exercise of a right; that an Irish national judge has an unfettered discretion to make a preliminary reference to the Court of justice for interpretation; and that “o fetter that right” by making it subject to review on appeal, would be contrary to both the spirit and letter of article 177 of the Treaty”.

Ms Justice Costello said that it remained the case that there was nothing to permit an appeal from the High Court in respect of a reference under 267 TFEU.

Furthermore, with reference to Article 34 of the constitution, it was confirmed in Campus Oil that a reference for a preliminary ruling is not a “decision” within the meaning of Article 34.

Ms Justice Costello said that the Supreme Court in Campus Oil was fully apprised of the fact that other EU member states allowed such appeals, but it was held that as a matter of Irish law the Supreme Court had no jurisdiction to entertain this.

Facebook said that their case was distinguishable from Campus Oil because the sole relief in these proceedings was a reference from the High Court to the CJEU in order that the CJEU may rule on the validity of the SCC decisions. Justice Costello said that this submission was “without merit”, and that it did not matter that the proceedings only asked the High Court to make the reference.

Ms Justice Costello also explained that Cartesio did not alter the binding effect of Campus Oil, as it did not require member states to provide for appeals from a decision to make a reference in their domestic legal order.

Refusing to grant the stay sought by Facebook, Ms Justice Costello said she was bound by the decision of the Supreme Court in Campus Oil, and therefore she had to hold that Facebook did not establish an arguable case.

Minimising the risk of injustice

Ms Justice Costello stipulated that if she was incorrect in finding that Facebook did not have an arguable case, it would be necessary to contemplate how to minimise the risk of injustice by wither the grant of a stay or withholding of a stay.

Considering the fact that granting a stay would further delay the case, Ms Justice Costello said that the potential loss suffered by millions of EU data subjects whose data continues to be processed unlawfully was “unquantifiable and incapable of being remedied” and that very real prejudice would potentially be suffered.

Emphasising that the Court should not compound the unavoidable matter of delays in bringing a case of this nature before the CJEU, Ms Justice Costello said that she would not exacerbate the potential prejudice any further and refused to grant the stay sought by Facebook.

Ms Justice Costello ordered that the reference should be delivered immediately to the Court of Justice.