Facebook has lost its appeal to the Supreme Court on the issue of the decision by the High Court to refer to Europe the question of EU-US data transfers.

In October 2017, Justice Caroline Costello issued her judgment and in May 2018 the matter was referred for determination to the Court of Justice of the EU.

The Data Protection Commission (DPC) had taken proceedings in the High Court arising from complaints by an Austrian lawyer called Max Schrems.

Headquarters

He complained to the Irish DPC because Facebook’s European headquarters are in Dublin.

Facebook’s 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.

Schrems objected to the transfer of his personal data to the US, which he said breached his privacy and data protection rights as a citizen of the EU.

The High Court in its decision referred the issues to the Court of the Justice of the EU in Luxembourg.

No right to appeal

The Supreme Court judgment holds that there is no right to appeal a referral decision though the higher court can examine a decision of the lower court.

Chief Justice Frank Clarke said that it is a matter for the referring court, and that court alone, to decide whether to make a reference and whether to amend or withdraw that.

The higher court can hear an appeal concerning the facts found by the High Court and whether they accord with Irish jurisprudence.

Reference

Chief Justice Frank Clarke writes “I do not consider that this Court can entertain any appeal against the decision of the High Court to make a reference or against the terms of that reference.  In accordance with the jurisprudence of the CJEU, it is for the referring court, and that court alone, to decide whether to make a reference and, indeed, whether to withdraw or amend same. 

He said that it is “not appropriate” to entertain an appeal directly concerned with the analysis of the High Court decision, and that the court shared the concerns of the DPC.

Linked

“That analysis is inextricably linked with the decision to refer and is not a matter which can properly be pursued on appeal,” the Chief Justice writes.

On this basis, the Supreme Court will not entertain the appeal put forward by Facebook.