Supreme Court to rule on Facebook data transfer appeal

Social media giant contesting referral of various issues to European Court of Justice

The Supreme Court will rule by June 6th on Facebook's appeal over a High Court decision to refer key issues concerning the validity of European Commission decisions approving European Union-United States data transfer channels to the European Court of Justice (CJEU).

The referral was made by the High Court in proceedings by the Data Protection Commissioner arising from complaints by Austrian lawyer Max Schrems that the transfer of his personal data by Facebook to the US breached his data privacy rights as an EU citizen.

The core issue the Supreme Court must decide in Facebook’s appeal, heard last January with judgment reserved, is whether there is any right to appeal over a referral decision.

Chief Justice of the Supreme Court Mr Justice Frank Clarke, said this week the court would rule on the matter by the end of the current law term on June 6th.


The appeal concerns an October 2017 High Court judgment by Ms Justice Caroline Costello and her subsequent referral in May 2018 of issues for determination by the CJEU.

The judgment was given in a case brought by Data Protection Commissioner Helen Dixon, arising from the complaints by Mr Schrems, against Facebook Ireland – because Facebook's European headquarters are here – and Mr Schrems.

No formal orders were sought against them and the core issue concerned the validity of data transfer channels known as standard contractual clauses .

Ms Justice Costello directed a referral to the CJEU of 11 issues concerning the validity of European Commission decisions approving the clauses.

Facebook argued before the Supreme Court last January that it is entitled to appeal the referral and also disputed several of the High Court’s findings, including that the Data Protection Commissioner had “well founded” concerns about “mass indiscriminate processing” of data by US government agencies under programmes authorised there.

The US government was involved in the appeal as an amicus curiae, assistant to the court on legal issues.

It supported Facebook’s argument that no reference to the CJEU is required in light of the Privacy Shield agreement between the EU and US and the European Commission’s determination the US ensures an adequate level of protection for personal data transferred under the Privacy Shield.

Lawyers for the Data Protection Commissioner said she has concerns whether the measures provided for under the Privacy Shield are comparable to the remedy available to EU citizens for breach of data privacy rights under Article 47 of the EU Charter.

Mr Schrems opposed the appeal with his lawyers, arguing Facebook had failed to identify an error by the High Court.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times