The High Court has ordered the Data Protection Commissioner (DPC) to pay Maximillian Schrems’ costs of proceedings over EU data transfers to the United States, including the costs of a reference to the Court of Justice of the European Union (CJEU). The costs are to be assessed if the parties cannot agree.
In a judgment delivered on 30 October 2020, Ms Justice Costello also ordered Facebook Ireland Limited to pay the DPC’s and Mr Schrems’ costs for three of the four days spent hearing Facebook’s and the United States’ application to correct errors in the High Court judgment. There was to be no other costs order between the DPC and Facebook.
The underlying case concerned the DPC’s request for a CJEU ruling on the validity of standard contractual clauses (SCCs) used for transferring personal data outside the EU. The CJEU had ruled in July 2020 that the EU-US Privacy Shield adequacy decision was invalid, but that the SCC decisions were not invalid. The High Court judgment addressed costs following that ruling; it did not determine a new challenge to the validity of the SCCs.
The DPC sought her costs from Facebook, while Mr Schrems sought his costs from the DPC. Facebook asked for no costs in its favour but opposed an order against it. The court rejected the DPC’s argument that she had succeeded against Facebook on the overall outcome. Although many of her arguments were upheld, the CJEU rejected her position that the SCC decisions were invalid. The court also found that Facebook’s unsuccessful arguments were stateable and did not amount to improper litigation conduct warranting a costs order in the DPC’s favour.
The judge found Mr Schrems had succeeded against the DPC on the points where their positions differed. She rejected the DPC’s submissions that his participation was unnecessary or that his costs should be shifted to Facebook. Mr Schrems had been joined as a defendant, was the complainant whose data protection complaint was under investigation, and was entitled to participate fully, the court said. The judge was not satisfied there were special circumstances to depart from the ordinary rule that costs follow the event.
The final order gives Mr Schrems his costs against the DPC, including reserved costs, except for the three days of the errors application for which he is entitled to recover costs from Facebook. The DPC is also entitled to recover her costs for those three days from Facebook. Both awards are to be assessed if not agreed. The judgment invited further short submissions if the parties could not agree the costs order for the 1 October 2020 hearing.