The High Court appointed Digital Rights Ireland Ltd. (DRI) as an amicus curiae in Maximillian Schrems’s judicial review case, but refused its request to add questions challenging the validity of the EU Data Protection Directive and the European Commission’s Safe Harbour Decision to a reference already proposed for the Court of Justice of the European Union.
In a judgment delivered on 16 July 2014, Mr Justice Gerard Hogan said DRI’s submissions could offer a distinctive perspective on data protection and surveillance. The appointment permits DRI to assist the court; it does not make the organisation a party to the litigation.
The underlying judicial review challenges the Data Protection Commissioner’s decision not to investigate Schrems’s complaint about personal data transferred from Ireland to the United States. The Commissioner had considered the complaint unsustainable, relying on the absence of evidence that Schrems’s own data had been accessed by US security agencies and on the Commission’s 2000 Safe Harbour finding that the United States provided an adequate level of data protection.
In an earlier judgment on the substantive proceedings, Hogan rejected the Commissioner’s objection that Schrems lacked standing. He also said mass and indiscriminate surveillance of private communications generated in the home would be unconstitutional under Irish law. But he concluded that EU law and the Safe Harbour Decision constrained the Commissioner’s assessment of whether US protections were adequate. He proposed referring to the EU court whether the Commissioner was bound by that decision in light of later developments, including the Charter of Fundamental Rights.
DRI sought to join the proceedings as an amicus and to have questions about the validity of the 1995 Directive and Safe Harbour Decision added to the reference. Schrems opposed DRI’s appointment, while the Commissioner took a neutral position. Hogan acknowledged the objections, including DRI’s lack of a legally assigned role in data protection matters, and said he reached his decision “not without considerable hesitation.” He found that DRI’s record, including its successful challenge to the Data Retention Directive, could assist the EU court. DRI was not to seek costs from either party.
The court refused the proposed additional questions because they would substantially change the case’s scope and nature. Hogan said a challenge to the Directive would also put the validity of Irish legislation into issue and require the Attorney General to be joined. The judgment therefore allowed DRI to assist within the existing proceedings while leaving the proposed Article 267 reference questions unchanged.