Supreme Court appeal by Facebook on 'EU-US data transfer channels' to go ahead in December

By Ann O'Loughlin

Facebook has got a provisional date on December 19th for its unprecedented Supreme Court appeal aimed at halting a referral to the European Court of Justice concerning the validity of EU-US data transfer channels.

The issues to be decided by the Supreme Court include whether there is any entitlement in the first place to appeal such a reference to the European Court of Justice (CJEU) .

The High Court's Ms Justice Caroline Costello previously ruled there was no such entitlement and she had made the referral before the Supreme Court agreed on Facebook last to hear Facebook's appeal.

In those circumstances, the Supreme Court is fast-tracking the appeal and it came before Ms Justice Mary Finlay Geoghegan on Thursday for case management.

The judge provisionally fixed December 19th for the appeal and made directions for exchange prior to that of various legal documents.

She told Paul Gallagher SC, for Facebook, it must clarify exactly what issues it wants the court to determine, noting the other parties contended Facebook had not clearly identified those.

She wanted a list of issues, not more submissions, plus a list of the orders being sought by Facebook, the judge stressed.

Mr Gallagher said his side would provide those lists.

Earlier, he said the issues include whether or not there a reference can be appealed.

Facebook also maintains the High Court made incorrect findings of fact including in relation to US law and surveillance practices on foot of which Ms Justice Costello concluded the Data Protection Commissioner had "well founded concerns" about the adequacy of protections in the US for data privacy rights of EU citizens.

Facebook wants the Supreme Court to set aside those findings of fact or to direct the High Court to revisit them.

Facebook also contends the Supreme Court should find the Privacy Shield agreement between the EU and US means there is no requirement for a reference to the CJEU.

Ms Justice Finlay Geoghegan said she was concerned, when she read Facebook's submissions, those failed to identify any evidence which was ignored by the High Court in a way that would permit the Supreme Court to do as Facebook asked.

She stressed the Supreme Court was not going to read all the evidence before the High Court during the lengthy hearing.

The appeal is opposed by parties including the Data Protection Commissioner and Austrian lawyer Max Schrems, whose complaints about the transfer of his personal data to the US led to the proceedings.

Brain Murray SC, for the Commissioner, told the judge his side wanted Facebook to identify "precisely" what issues it wants addressed in the appeal and what orders it is seeking.

Facebook's submissions should be stripped of references to US law which are not grounded in the High Court reference, he added.

The US government, one of a number of parties joined to the case to assist the court on legal issues, had supported Facebook's arguments relating to protections under US law and its counsel, Eileen Barrington SC, is to provide submissions for the appeal on US law.

Last May, Ms Justice Costello directed a referral "immediately" to the CJEU 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 is "mass indiscriminate processing" of data by US government agencies under the PRISM and Upstream programmes authorised there.


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