Supreme Court: Facebook loses appeal against decision to refer data protection case to CJEU

Supreme Court
Supreme Court

Facebook has lost an appeal against the decision to refer a complaint about EU-US data transfer to the Court of Justice of the European Union for a preliminary ruling.

Emphasising that there were significant limitations on the issues which could be considered on such an appeal, the Chief Justice, Mr Justice Frank Clarke refused to overturn any part of the High Court judgment, finding that Facebook’s criticisms of the judgment “were directed towards the proper characterisation of the underlying facts rather than towards those facts themselves”.


In the CJEU in Schrems v Data Protection Commission (Case C-362/14), it was held that the national law of member states must provide a procedure whereby the person or body charged with data protection in the EU member state concerned – such as the Data Protection Commissioner (DPC) – should have a method of referring to the CJEU concerns relating to Union instruments in the data protection field, in circumstances where questions might arise as to the validity of the instruments in question. 

Mr Maximillian Schrems brought a complaint to the DPC, who formed the required view as to having concerns relating to the validity of certain relevant EU instruments – Commission Decisions 2001/497/EC, 2004/915/EC, and 2010/87/EU – which concerned “Standard Contractual Clauses”.

On that basis, the DPC brought the present proceedings before the High Court. In October 2017, Ms Caroline Justice Costello stated that she intended to make an order for reference to the CJEU pursuant to Article 267 TFEU for a preliminary ruling. Facebook Ireland Limited applied for a stay to enable it to appeal the order for reference, however in May 2018, Ms Justice Costello refused to grant the stay. The reference to the CJEU remains pending before that Court.

Supreme Court

Facebook sought and was granted leave to appeal to the Supreme Court. Delivering the judgment of the five-judge Court, Mr Justice Clarke explained that two broad sets of issues were the subject of leave to appeal:

  1. The question of whether, as a matter of the combined effect of Irish constitutional law and the law of the European Union, any appeal at all lies to this Court in circumstances such as have arisen in this case and, if so, the permissible parameters of any such appeal.
  2. Certain findings of the High Court in relation to the law of the United States and the protections which that law confers on data subjects whose data is transferred to the United States from the European Union. Some of those findings are said by Facebook to be either in error or misleadingly incomplete.

It was noted that the Government of the United States was granted leave to intervene in both the High Court and on this appeal.

Mr Justice Clarke was satisfied that it was open to the Supreme Court to entertain an appeal against a decision of the High Court in circumstances where the High Court made a reference to the CJEU under the Schrems v Data Protection Commission (Case C-362/14) jurisprudence. However, he said there were significant limitations on the issues which could be considered on such an appeal.

He said the Court could not entertain any appeal against the decision of the High Court to make a reference or against the terms of that reference; in accordance with CJEU jurisprudence, it is for the referring court to decide whether to make a reference, and whether to withdraw or amend.

Mr Justice Clarke was also satisfied that it was not appropriate for the Supreme Court to entertain an appeal directly concerned with the analysis of the High Court leading to a decision by that Court to the effect that it shared the concerns of the DPC. He said that analysis was “inextricably linked with the decision to refer and is not a matter which can properly be pursued on appeal”.

Mr Justice Clarke said the Supreme Court “can and should entertain any appeal against the facts found by the High Court and should overturn those facts, if it can be established that they are not sustainable in accordance with the relevant Irish jurisprudence”.

He added that “while, as a matter of Irish law, any decision by this Court to overturn such facts would be binding on the High Court it remains the case that, as a matter of Union law, it is a matter for the High Court and that Court alone to determine whether it should, in the light of the decision of this Court, continue with, amend or withdraw the reference”.

On that basis, he said the Supreme Court should not entertain some of the areas of appeal put forward on behalf of Facebook on the basis that they either involve a direct appeal against the text of the reference or are concerned with matters which essentially go towards the question of whether the High Court shared the concern of the DPC.

Mr Justice Clarke said that while US law is considered a matter of fact in Irish law, it did not necessarily follow that the CJEU would determine that the High Court’s findings were the proper characterisation of US law for the purposes of proceedings before it.

Dismissing the appeal, Mr Justice Clarke said that Facebook’s criticisms of the judgment of the High Court “were directed towards the proper characterisation of the underlying facts rather than towards those facts themselves”. In those circumstances, Mr Justice refused to make any order overturning any aspect of the High Court judgment.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2020

Other judgments by Mr Justice Frank Clarke

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