US wants views taken into account in data transfer case

The US government has said it is "critically important" its views are taken into account when the High Court finalises questions to be decided by the European Court of Justice (ECJ) concerning the validity of EU-US data transfer channels.

Facebook is also considering seeking an appeal against the Irish court's decision to ask the ECJ to determine whether European Commission decisions approving use of the channels, known as standard contractual clauses, are valid or not.

Ms Justice Caroline Costello heard submissions on Wednesday about preparing questions for determination by the ECJ, which arises from her significant judgment granting Data Protection Commissioner Helen Dixon’s application for a referral.

The case, the judge noted, had potentially huge implications for billions of euro worth of EU-US trade and the data privacy rights of millions of EU citizens as well as their safety and security .

The judge made the referral for reasons including that she agreed with the commissioner there were “well founded” grounds for believing three European Commission decisions approving standard contractual clauses were invalid. That was due to the absence of an effective remedy in the US for an EU citizen who alleged breach of data privacy rights.

Complaint

The referral was granted in the proceedings by the data protection commissioner against Facebook Ireland and Austrian lawyer Max Schrems. The case was rooted in a complaint by Mr Schrems about transfer of his data by Facebook to its US parent.

Eileen Barrington SC, for the US government, said on Wednesday that it was anxious to have its views on the questions considered for reasons, including to ensure the description of US law in the final High Court referral order was “factually accurate”.

Her side had reviewed the court’s judgment and had “issues” about some of the descriptions of US law.

She was also concerned the commissioner appeared of the view the US government was not a “party” to the proceedings before the ECJ. The US got involved in the Irish case because of the prospect of a referral and would have a role before the ECJ. That had been the practice and she would be concerned if the commissioner believed otherwise.

Lawyers for Digital Europe, the Business Software Alliance and Washington-based Electronic Privacy Centre – all legal assistants to the court in the commissioner’s case – said they also wished to be heard on the questions.

Michael Collins SC, for the commissioner, said he was anxious there should be no attempts to “relitigate the matter” but any actual errors could be corrected.

Leapfrog

Lawyers for the commissioner and the defendants – Facebook and Mr Schrems – would try to agree on the wording of the questions and present those to the court, he said. He was concerned it would be “difficult enough” for the three parties to agree a wording and could be “next to impossible” if the amici – the parties joined as assistants to the court on legal issues – were also involved.

The issue of who would be involved in the ECJ case was a matter for that court, he added.

Eoin McCullough SC, for Mr Schrems, said he took an even stronger view that the wording of the questions was a matter for the parties. Paul Gallagher SC, for Facebook, said the parties should agree the questions but the amici could make “suggestions” about them.

The judge, who will make the final decision on the wording, said it was “best” the parties try to agree questions but drafts could be sent to the amici who could participate in the court hearing to finalise the wording. The parties were not obliged to take account of their views, she added.

She was told by Mr Gallagher that Facebook was considering applying to the Supreme Court for a direct “leapfrog” appeal over the referral. There was an issue over whether Facebook could bring any appeal against a reference ruling but only the Supreme Court could determine whether there was such an entitlement, he said.