High Court orders referral to EU court in landmark Facebook/Schrems data protection case

The Data Protection Commissioner requested the referral following a complaint by Austrian privacy campaigner Max Schrems about Facebook’s use of so-called standard contractual clauses (SCCs) to transfer personal data from Europe to the US.

In a 152-page judgment, Ms Justice Caroline Costello said she agreed with the Commissioner’s provisional view that SCCs do not offer the level of protection necessary under EU privacy laws.

The case has massive implications and marks the US government’s first-ever involvement in litigation in the Irish courts.

Mr Schrems opposed a referral because he felt the Commissioner already had enough information to make a final ruling on his complaint.

In a statement, the Data Protection Commissioner Helen Dixon said: “The transfer of personal data to the US under the standard contractual clauses mechanism (SCCs) raises important issues for the protection of EU citizens’ data protection rights.”

She went on to say she “hopes these issues will be addressed by the CJEU as soon as possible to provide certainty for data subjects and controllers alike”, and that today’s decision “does not invalidate the SCCs (nor the Privacy Shield); neither does it prohibit their continued use use for the purpose of data transfers to the US or elsewhere”.

She said: “Rather, it invites the CJEU to consider whether, under EU law, SCCs in their present form can and should be retained as a basis for the transfer of personal data from the EU to the US.”