The Irish Supreme Court will soon rule on a bid by Facebook to halt the referral of 11 questions on EU-US data transfers to the Court of Justice of the European Union (CJEU). The hearing has been set down for Thursday 21 January 2019. It is expected to last for three days.

For determination is the question of whether, or not, a referral, by the Irish High Court to the CJEU, of eleven questions about the legality of Facebook’s data transfers has merit.

This case has huge implications for the EU’s decision to support Privacy Shield and for the use standard contract clauses (SCCs). It also marks the US government’s first-ever involvement in litigation in the Irish courts.

Legal journey

This case is the latest round in a long running battle between Facebook and Austrian lawyer and privacy campaigner Max Schrems. The referral application arose from a formal complaint made to the Irish Data Protection Commissioner by Mr Schrems.

Mr Max Schrems

His complaint concerns the use by Facebook of SCCs to transfer personal data. He claimed that in breach of EU law Facebook was sharing his personal data, and that of other Facebook users, with the US National Security Agency. The Irish Data Protection Commissioner made a referral application to the High Court in 2017, requesting that the issues arising in the complaint be determined by the CJEU.

In May 2017 the High Court granted the referral of 11 questions to the CJEU concerning the validity of European Commission decisions approving data transfer channels, also known as standard contractual clauses. Facebook appealed.  

It is expected that Facebook will argue, in the Supreme Court, that under the Privacy Shield agreement between the EU and the U.S. there is no requirement to seek clarification from the CJEU on EU-U.S. data transfers.