February date set to hear data transfer challenge

A High Court judge will hear the action by the Data Protection Commissioner over the legality of existing data transfer channels between the EU and US next year.

Mr Justice Brian McGovern fixed the hearing, which could have enormous implications for EU-US trade and the data privacy rights of millions of EU citizens, to open on February 7, 2017. It will run for up to three weeks.

Commissioner Helen Dixon wants the High Court to refer issues concerning the validity of data transfer channels, known as standard contractual clauses and approved by various European Commission decisions, to the Court of Justice of the EU (CJEU) for determination.

She brought proceedings after making a draft finding last May that Austrian lawyer Max Schrems had raised well-founded objections as to whether the existing channels breach data privacy rights of EU citizens. That finding arose from a complaint by Mr Schrems as to what was happening to his Facebook data when sent to the US for processing.

The commissioner’s case is against Mr Schrems and Facebook Ireland because Facebook’s European headquarters are based here.

Yesterday, the case was before Mr Justice Brian McGovern to make directions for exchange of legal documents between the sides for the full hearing and to fix a hearing date.

The judge dismissed arguments by Eoin McCullough, counsel for Mr Schrems, that, before any High Court hearing, the Commissioner should make a “full” finding on facts.

Mr McCullough said that, to date, Ms Dixon had only made a draft finding concerning Mr Schrems’ objections, and said her decision was subject to further submissions from Mr Schrems and Facebook.

She should make a final decision on the facts before any High Court hearing to refer issues to the CJEU and that would save time and costs, he said.

Paul Gallagher, for Facebook, described Mr Schrems’ arguments as “extraordinary”, “misconceived”, and made too late.

Michael Collins, for Ms Dixon, agreed and said his client followed the correct procedure for seeking a reference.

Unlike a normal reference to the CJEU, which is then returned to a national deciding authority, no national court can declare a decision of the European Commission invalid; only the European Court can do that, he said.

The judge rejected Mr Schrems’ arguments and made the directions requested. He set October 17 to hear Mr Schrems’ application for a protective costs order.

The judge refused as too late a request by Declan McGrath, for Indian-based IT trade representative body Nasscom, for leave to bring an application to be joined as amicus curiae (assistant to the court on legal issues).

Nasscom only learned in recent days of the Irish court proceedings and was concerned about implications for Indian entities heavily reliant on data transfers, counsel said.

Last week, the judge granted applications by the US government, US-based data privacy watchdog Epic, the Business Software Alliance, and Digital Europe to be joined to the case as amicii curiae. Only a party to the Irish proceedings can participate in any reference to the CJEU.