Supreme Court to decide if it will hear Facebook appeal

High Court referral to ECJ concerns validity of EU-US data transfer channels

The Supreme Court will decide later whether it will hear an unprecedented appeal by Facebook against a High Court judge's decision to refer to the European Court of Justice (ECJ) key issues concerning the validity of data-transfer channels between the European Union and the United States.

Facebook argues it is entitled to appeal both the reference itself and certain findings of fact by the High Court’s Ms Justice Caroline Costello grounding the reference which, it claims, are wrong.

Those include findings that the Data Protection Commissioner had “well-founded concerns” about the adequacy of protections in the US for data privacy rights of EU citizens.

The “exceptional circumstances” and potentially far-reaching consequences of the case, including for EU-US trade, mean the Supreme Court can hear such an appeal, Paul Gallagher SC, for Facebook, argued.


If the Supreme Court agrees to hear an appeal, Facebook also wants it to stay the reference to the ECJ, made last May, pending the appeal.

The commissioner and Austrian lawyer Max Schrems maintain there is no entitlement to appeal either a High Court reference to the ECJ or any findings of fact grounding such a reference.

After a day-long hearing on Tuesday, the Chief Justice, Mr Justice Frank Clarke, said the five-judge court would give its decision later on whether it will hear Facebook's appeal.

Entitlement to appeal

The application raises issues of Irish and EU law concerning whether there is an entitlement to appeal to the Supreme Court over a referral decision.

Last May, Ms Justice Costello, arising from findings by her in an October 2017 judgment, directed a referral “immediately” to the ECJ of 11 issues concerning the validity of European Commission decisions approving data-transfer channels known as standard contractual clauses.

The questions raise significant issues of EU law with huge implications, including whether the High Court was correct in finding there was “mass indiscriminate processing” of data by US government agencies under the Prism and Upstream programmes authorised there.

On Tuesday, Mr Gallagher said Facebook disagreed with several findings of fact made by Ms Justice Costello. Among Facebook’s concerns was the High Court finding of “mass indiscriminate” processing of data by US government authorities when there was evidence to the High Court from the US government and experts for Facebook that that was not so, he said.

Facebook is very concerned the ECJ would decide such important issues based on those findings, he said.

Michael Collins SC, for the commissioner, argued the Supreme Court could not separate out the findings of the High Court from the reference decision itself for the purpose of permitting any appeal.

EU law prohibits any “filtering” by the Supreme Court concerning a reference and it cannot interfere in any binding way with the High Court in this matter, he argued.

The Constitution also does not provide for an “advisory consultancy” service to be run on the side by the Supreme Court for the High Court or for the Supreme Court to give a decision that is not binding on the High Court.


When the High Court decides to refer, EU law requires that responsibility is for the referring court alone and that’s where EU and national law conflict, he said.

There was adequate evidence on which the High Court reached its findings and no stateable grounds of appeal were advanced in that regard, he argued.

There is no provision of US law that says there is a general prohibition on surveillance and it was also evident US president Donald Trump had revoked a number of his own directives "at will", he noted.

Mr O’Sullivan, for Mr Schrems, argued the Supreme Court cannot create a “consultative appeal” via some form of “judicial activism”. There was no entitlement to divorce the decision to refer from the High Court’s findings of fact, he argued.

The reference was made in proceedings by the commissioner concerning a complaint by Mr Schrems that transfer of his personal Facebook data to the US breached his data privacy rights as an EU citizen.

Ms Justice Costello’s judgment was primarily concerned with the data-protection directive and its focus on whether third-country protections for EU citizens data privacy rights were “adequate”.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times